INTERNATIONAL LAW AND THE ‘WAR ON TERRORISM’: POST 9/11 RESPONSES BY THE UNITED STATES AND ASIA PACIFIC COUNTRIES 43 International Law and the ‘War on Terrorism’: Post 9/11 Responses by the United States and Asia Pacific Countries Stephen P Marks* Introduction Terrorism is not a new challenge to international order,1 although the influence of the United States has resulted in significant rethinking of the international law and politics of terrorism since the attacks on the US of 11 September 2001, which has had ramifications in all regions, including the Asia Pacific. An unresolved issue of international law is whether and to what extent those attacks have justified the claim that there is a ‘new paradigm’ in international law. The following pages will examine responses to terrorism under the traditional paradigm with particular reference to the Asia Pacific region, and under the so-called new paradigm proposed by the government of the United States in the context of its ‘war on terrorism.’ I. The International Law and Politics of Responses to Terrorism under the Traditional Paradigm Under international law, the phenomenon of terrorism has been defined in various treaties; the rules governing the use of force have been applied to regimes and * François-Xavier Bagnoud Professor of Health and Human Rights, Harvard University, and Visiting Professor, City University of Hong Kong. This article is based on a lecture given on 9 March 2006 at City University of Hong Kong in the Eminent Speakers Lecture Series. The research assistance of Mr Ronald Yu for the section on the Asia Pacific region is gratefully acknowledged. Parts of this article draw on material used in an earlier article in 14 Michigan State J Int’l L (2005). 1 Acts currently characterized as terrorism date back to ancient times. The term itself derives from the régime de la terreur following the French Revolution, which resulted in ten of thousands of people being put to death in France between 1793-1794. From the perspective of international law, efforts to deal with the phenomenon go back at least to 1937, when the League of Nations drafted the Convention for the Prevention and Punishment of Terrorism. 43 ASIA PACIFIC LAW REVIEW, Vol 14 No 1 © LexisNexis, 2006 44 STEPHEN P MARKS organizations that commit or support terrorism; and states have developed mechanisms of international cooperation in law enforcement to apprehend and prosecute criminal activity related to terrorism. The United States has actively enlisted these elements of the traditional paradigm in its post 9/11 responses to terrorism. A. Terrorism Defined Terrorism is normally understood to refer to ‘...criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes ...’2 It is the object of 13 multilateral and 7 regional treaties, which define and provide for criminalization of specific acts relating to such behaviour as hijacking,3 bombing,4 financing of terrorism5 and nuclear terrorism.6 The report of the UN High-level Panel on Threats, Challenges and Change7 said in 2004 that terrorism ‘attacks the values that lie at the heart of the Charter of the United Nations: respect for human rights; the rule of law; rules of war that protect civilians; tolerance among peoples and nations; and the peaceful resolution of conflict.’8 It also alluded to the fact that ‘terrorism flourishes in environments of despair, humiliation, poverty, political oppression, extremism and human rights abuse; it also flourishes in contexts of regional conflict and foreign occupation; and it profits from weak State capacity to maintain law and 2 This definition is used in numerous UN resolutions, such as the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, UN Doc A/Res/ 51/210, 17 December 1996, Annex. 3 See the Tokyo Convention on Offences and Certain Other Acts committed on Board Aircraft (1963), the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970), the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971). 4 See the International Convention for the Suppression of Terrorist Bombings (1997), adopted by the General Assembly in resolution 52/164 of 15 December 1997, entered into force on 23 May 2001. 5 See the International Convention for the Suppression of the Financing of Terrorism (1999), adopted by the General Assembly in resolution 54/109 of 9 December 1999, entered into force on 10 April 2002. 6 See the International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the General Assembly in resolution 59/290 of 13 April 2005, opened for signature on 14 September 2005. 7 ‘A more secure world: our shared responsibility.’ Report of the High-level Panel on Threats, Challenges and Change, UN Doc A/59/565, 2 December 2004. 8 Id, para 145. INTERNATIONAL LAW AND THE ‘WAR ON TERRORISM’: POST 9/11 RESPONSES BY THE UNITED STATES AND ASIA PACIFIC COUNTRIES 45 order.’9 The divergent geopolitical perspectives reflected in this language have hampered efforts to achieve consensus on a definition in the context of the draft Comprehensive Convention on International Terrorism, with which the UN has been grappling since 1996.10 Although there seems to be consensus that terrorism amounts to the deliberate targeting of civilians,11 the failure to agree on a definition relates in large part to the insistence by Islamic countries that terrorism must be defined by the intention of the act and not exclusively by the consequences or victims, so that attacks in defense of ‘national liberation’ movements and ‘self- determination’ might not be defined as terrorism. UN Secretary-General Kofi Annan’s response to this view was: ‘I understand and accept the need for legal precision. But let me say frankly that there is also a need for moral clarity. There can be no acceptance of those who would seek to justify the deliberate taking of innocent civilian life, regardless of cause or grievance.’ The ad hoc committee working on the draft ended its February-March 2006 session without consensus but expressing its ‘strong resolve’ to finalize the draft comprehensive convention on international terrorism.12 B. Use of Force Against Regimes and Organizations That Support Terrorism The traditional paradigm of international law governing the use of armed force across borders against presumed authors of terrorist acts and governments that support them is found in article 2(4) of the Charter of the United Nations on the use of force, Chapter VII on peace enforcement, and article 51 on self-defense. Accordingly, the Security Council must determine that an act of aggression or threat to international peace and security has occurred and then authorize the use 9 Id. The language is reminiscent of numerous earlier resolutions and reports, which referred to ‘the underlying causes...which lie in misery, frustration, grievances and despair.’ See, for example, A/Res/36/109 of 10 December 1981, entitled ‘Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms, and study of the underlying causes of the forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes.’ 10 See ‘Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Ninth session (28 March-1 April 2005)’, UN doc. A/60/37, pp 23- 29. Further issues regarding the definition may be found in Martin Scheinin, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN doc E/CN4/2006/98, 28 December 2005, paragraphs 26- 50. 11 The 2005 World Summit Outcome simply stated ‘We strongly condemn terrorism in all its forms and manifestations, committed by whomever, wherever and for whatever purposes, as it constitutes one of the most serious threats to international peace and security.’ 2005 Summit Outcome, UN doc. A/Res/60/1, 24 October 2005, para 81. 12 ‘Report of the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996, Tenth session (27 February-3 March 2006)’, UN doc A/61/37 (Supp), 3 March 2006. 46 STEPHEN P MARKS of force for the restoration of international peace and security. The US response to 9/11 was indeed to use such force by going to war in Afghanistan for the purpose, as it explained to the UN, ‘to prevent and deter further attacks on the United States.’13 This action was for the most part in line with the traditional paradigm of international law, since the Security Council found that the failure by the regime in power to deliver up terrorists was in violation of international law and that its behavior was a threat to international peace and security.14 The US took the precaution of ensuring that the Security Council, in Resolution 1368 (2001) of 12 September 2001, recognized ‘the inherent right of individual or collective self- defense...’15, which provided the principal legal basis for the use of force.16 As will be explained below, the US has claimed that the war in Iraq was legal as a preemptive or preventive attack under the ‘new paradigm’. It also advanced another legal justification under the traditional paradigm, namely, that military action was authorized under earlier Security Council Resolutions (namely resolutions 679 and 687 of 1991) as a result of Iraq’s failure to comply with Security Council Resolution 1441. In Resolution 1441, the Council found Iraq in ‘material breach’ of its resolutions and gave it ‘a final opportunity to comply with its disarmament obligations,’ adding that Iraq ‘will face serious consequences as a result of its continued violations of its obligations.’ The US and the UK deemed it within their powers to determine when the failure to comply would be operative and what the ‘serious consequences’ would be.17 Many have argued that this link with earlier resolutions was an ex post facto justification of a predetermined decision to invade Iraq.