The quest for the Holy Grail: An examination of the international community’s effort to

establish international peace and security in light of the elusive nature of terrorism and

9/11

By

James Daza

California State University, Los Angeles

Criminal Justice 598

Dr. Ira Sommers

9-2-2003

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The quest for the Holy Grail: An examination of the international community’s effort to

establish international peace and security in light of the elusive nature of terrorism and

9/11

In the wake of September 11, 2001, both the United States of America and the

whole international body realized that the new threat facing the 21st century is terrorism

and its affects on both security and international law. On a domestic level, the U.S. had to

weigh the importance of preserving its constitutional ideals and internal security.

Questions concerning methods of reducing terrorism and prosecuting terrorists have

arisen inspiring multi-lateral cooperation among the member states of the United Nations

while considering new innovative legal and law enforcement strategies. However,

tackling this problem effectively and legally has spurred debate among scholars and law

enforcement professionals. Nevertheless, all do agree on one important point, in an effort

to truly fight terrorism, a multi-lateral approach is necessary employing both domestic

and international resources upon which domestic and international laws are adhered.

Although, inter-governmental agency cooperation are presented with both legal and

logistical problems that may stiffen any effort to combat terrorism effectively. Therefore,

an examination of both these efforts and obstacles are required in order to propose

possible solutions.

Before any such analysis can begin, terrorism must first be described and assessed

as to the degree it can affect a society. Unfortunately, defining terrorism is as easy as

decoding the human genome. Currently, consensus as to what is terrorism still eludes

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legislators and scholars alike (Taylor 2002, Weiss 2002, Sucharitkul 2002, Glennon

2002, Smith 2001, Mueller & Mueller 2000, Sheptycki 1995, and Austin 1991). Austin

(1991) used Jack Gibbs’s 1989 definition to create his theoretical propositions concerning

terrorism’s impact on a Philippine community. He defined it as pertaining “to illegal

interpersonal violence, including threatened violence, associated with political (or

political-religious) extremism and subversion (p.34).” Weiss (2002) provided two

characteristic principles defining terrorism even further. “It is intended to inflict death or

seriously bodily harm upon civilians or other persons (presumably military personnel) not

taking part in hostilities and its purpose is to intimidate a population or persuade a

government or international organization to adopt a certain policy (p.2).” The 1937

Convention on the Suppression of International Terrorism defined it as a set of “criminal

acts directed against a state and intended or calculated to create a state of terror in the

minds of particular persons or a group of persons or the general public (Sucharitkul

2002:3).” Mueller and Mueller (2000) simply perceived it as a set of pathetic actions

perpetrated by weak and desperate persons.

So, one can see a certain range of descriptions that span from political motivations

to desperate acts that slowly widens the net of potential terrorist activity. However, why

have there been such discrepancies in describing terrorism? Conflicting political interests

are partly to blame. Several states (particularly Arab nations) want to insure that persons

who are considered freedom fighters by their own people are not targeted, persecuted, nor

have their movements confused with criminal campaigns by the rest of the world. Such a

label might inadvertently hurt their cause (Taylor 2002 & Smith 2001). The other reason

is more of a legal concern. Since terrorism is considered an international problem, some

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states who have fallen victim to terrorist acts of violence would like to try them in their

own countries, yet the accused may have foreign origins complicating the situation by

intruding on a nation’s legal jurisdiction.

In fact, the issue of extradition has caused some countries to choose between

previous treaties and current ones obligating them to cooperate in the “war on terrorism”

(Greenwood 2002, Taylor 2002, Turk 2002, Keramidas 2002, and Zubel 1999). For

example, European states would not be able to extradite accused terrorists to the U.S. if

their fates involve capital punishment because they are parties to the European

Convention on Human Rights (1950), and some are bound to Protocol VI. These

agreements forbid any signatories from extraditing anyone in their custody to another

state where the death penalty would be applied since they have held that capital

punishment is inhumane and in violation of human rights (Greenwood 2002). Taylor

(2002) described another example of extradition complications in Australia. Australian

legislators had to decipher the difference between an act of terrorism and an ordinary

crime in order to classify the offense under both refugee and extradition law. Under

refugee law, the Australian government cannot return a refugee to his country of origin

for persecution. Under extradition law, “a fugitive criminal is extradited to face

prosecution (Taylor 2002:130).” As a result, legislators must weigh the consequences of

both persecution and prosecution when dealing with a refugee suspected of terrorist

affiliations and perpetration. So, they created the term, “serious non-political crime” in

order to resolve the discrepancy between both laws (p.130). Now, if the offense is

considered solely politically motivated, extradition is implemented regardless of refugee

standing.

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Such conflicting international obligations explain why many international treaties

and anti-terrorism conventions have rarely been successful at arriving on an international

consensus on terrorism. The definition itself will determine where a state’s political

allegiance will reside. Only two recent conventions have been able to ascribe working

descriptions (the 1997 International Convention for the Suppression of Terrorist

Bombings and the 1999 International Convention for the Suppression of the Financing of

Terrorism). However, they are limited to the acts themselves since consensus is still

lacking on the term. Actually, describing acts of terrorism in lieu of defining it has

become a temporary solution for most international legislation (Weiss 2002 & Turk

2002). Smith (2001) has even ascribed 15 U.N. conventions and 2 draft conventions

naming offenses like hijacking, piracy, or assassinations as acts of terrorism; while,

Weiss (2002) referred to a U.N. website listing two protocols in addition to 8 U.N.

conventions spanning 23 years. The list of offenses are as varied as “hijacking, attacks on

diplomatic agents and other internationally protected persons, hostage taking, theft of

nuclear material and unlawful acts against maritime navigation and fixed platforms

located on the continental shelf (p.2).” So, the debate continues despite international

efforts to properly define terrorism.

Still, regardless of the difficulty in defining terrorism, its effects on a society are

not as hard to conceptualize. Two case studies of the very impact of terrorism were

observed in which theoretical propositions were presented and an examination of the

degree it can take on a society were observed. Although both studies spanned a decade

apart, their relevance continues to resonate on current events. Austin’s (1991) study of a

Philippine province, Lanao del Norte, used an interesting conceptual scheme similar to

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that used to study the social and psychological effects that followed a natural disaster. His

conceptual choice may imply that he may have viewed terrorism as a natural

phenomenon that may have a catastrophic effect on a society. When looking at Bibes’s

(2001) study of Colombia’s struggle against terrorism, Austin (1991) may have been

correct in his choice. In Colombia, the state has lost so much internal stability that

legislators are too afraid to pass any level of anti-terrorist or criminal laws because

guerilla forces (who also have some drug trafficking connections) may wind up

assassinating them. Subsequently, such violence only adds to the increasing crime rate

experienced in most of the metropolitan areas (Bibes 2001).

When observing Austin’s (1991) theoretical propositions, they can still be

compared to the reality of Colombia’s current situation. For example, Austin’s (1991)

sixth proposition states that “[n]ormative changes resulting from on-going terrorism

generate feelings of anger and resentment among the citizenry (p.40).” In Colombia,

paramilitary groups were formed by rural peasants to protect themselves from and (in

most cases) to hunt down leftist guerrillas whereby adding to the violence and increased

human rights violations plaguing the country (Bibes 2001). In another example, Bibes

(2001) described the amount of territorial control some guerrilla forces have in the

country partly due to their connections to the drug cartels and due to some government

concessions that afforded almost 40% of the country’s land to them. This obviously

affects travel and tourism for both citizens and tourists since they could be killed or

kidnapped while exploring some of these controlled areas. According to Proposition 9

from Austin’s (1991) theoretical conceptualization, terrorism may affect tourism and

business investment ventures as well as travel and education.

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Of most importance, though, is the point Austin (1991) made about social controls

determining the extent terrorist operations can flourish. According to his observations,

terrorism seemed to flourish more in urban centers (cities) where the government is

mandated to care and protect the citizenry. It is least prevalent in areas where “informal”

social controls dominate. This would make sense since a major characteristic of terrorism

involves building on a community’s distrust or disdain for their government (Austin

1991). Interestingly, he also noted that local anti-terrorist groups are more likely to arise

in rural areas where social ties are strongest. Bibes’s (2001) study reinforced Austin’s

(1991) propositions by noting that most guerrilla activity occurred in urban areas where

rebel factions not only attack targets but interact with the populace; whereas, in very rural

areas, more paramilitary group activity flourished. This is sensible since both

paramilitaries and guerilla forces are trying to kill each other. Given the complexity of

this problem and the very real potential results that may occur if it is left unchecked,

efforts to stop terrorism carry an even greater responsibility.

As a result, both domestic and international efforts have been made to combat and

reduce terrorist activities. In a way, this growing need to coordinate various international

law enforcement agencies exemplifies Sheptycki’s (1995) thesis on post-modernization

of the police force. According to him, transnational policing is a natural progression from

a time when policing a state was only restricted within its borders. Never before was

there a need to work beyond them. To him, the “police agency” represented an

administrative tool that kept the state in check by controlling the social operation that

kept the market going and maintained relative “industrial” order. However, as

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communication technologies improved and global markets became more constricted, the

more opportunities existed for cross-border crimes igniting a global response.

The U.S., for example, has taken steps to bridge the gap between its federal

agencies and other foreign police forces. The Federal Bureau of Investigations (FBI),

following a strategic 5-year plan between 1998 and 2003, had developed five support

agencies that would assist it in dealing with terrorist and criminal acts abroad that

threatened national security. One in particular, the FBI’s International Training and

Assistance Unit (ITAU) allows the agency to exchange law enforcement “training,

assistance, and liaison cooperation with foreign law enforcement (King & Ray 2000:

387).” In addition, the U.S. Congress established the Law Enforcement Interagency

Working Group in order to make recommendations regarding training and assistance

given to Eastern Europe, Russia, and the Newly Independent States of the Former Soviet

Union (NIS). The FBI also offers international need assessments for inviting host

countries relating to law enforcement needs whereby recommendations are then provided

as to how the agency can assist them. Also, numerous training seminars are offered for

foreign agencies by the FBI in which investigative techniques and administrative tools

are refined (King & Ray 2000). The Practical Case Training Initiative is a good example.

Through it, the FBI invites

foreign law enforcement officers to participate in actual investigation of mutual concern. On-the-job training, under the purview of the Criminal Investigative Division, stresses the importance of sharing case information and investigative techniques to combat criminal elements. Under the auspices of the PCT, agents also travel to foreign countries to work joint investigations there (King & Ray 2000: 341).

Though the United States’ commitment to enhance international cooperation to

battle terrorism has advanced, domestic efforts have also shown improvement in the past

that has led to the aforementioned evolution of the federal agencies. Before the 1980s, the

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federal government had made it virtually impossible to investigate American citizens

suspected of domestic or international terrorism due to the political nature of such crimes

and legal complications they might provide if suspects went to court. After 1983,

investigative rules changed allowing thorough investigations of domestic cases. In fact,

separate guidelines for investigating international terrorists were created (Turk 2002).

Local law enforcement had also evolved to deal with domestic, although less

extreme, terrorism. The formation of the Special Weapons and Tactics (SWAT) teams

occurred because police department resources were insufficient to deal with a crisis and

maintain regular police supervision concurrently in the communities. Over time, SWAT

teams had refined their tactics (particularly pertaining to hostage crisis) to a point where

the situation would be dealt with slowly through negotiations and non-lethal means.

Unfortunately, the nature of certain crimes such as mass high school shootings taught

SWAT professionals that time is not always a luxury for negotiations to be conducted

especially if the suspect cannot be dissuaded from murder. Therefore, “active shooter”

training for police officers had been developed in order to resolve the situation quickly

(Klinger & Grossman 2002).

International law enforcement efforts also have adapted to meet the threat of

terrorism. A prime example is the creation of Interpol. Created as the International

Criminal Police organization in 1956, after its predecessor (the International Commission

of Criminal Police) was reactivated following World War II and its constitution modified,

Interpol functions as a communications network for international law enforcement

agencies. This organization (founded by a group of police officers working independently

of their respective governments) originally handled ordinary crimes and excluded

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investigating offenses of a political, military, or racial nature. It was not until 1983 did

the U.S. entitled it as a Public International Organization, and many key Interpol

positions occupied by U.S. personnel spawned new efforts to investigate terrorist-related

offenses that were considered political and militaristic (Sheptycki 1995 & Bossard 1988).

Other international agencies surfaced afterward to deal more specifically with

international terrorism—TREVI, the Police Working Group (PWGOT), the Mutual

Assistance Group (MAG), and the Comite Europeen pour la Lutte Anti-Drogue

(CELAD) (Sheptycki 1995). A major player is the Schengen Agreement. “[It] provides

one of the key intergovernmental fora for police co-operation in Europe…The primary

objective…has been to ‘harden’ the external borders of the European Community (now

Union) and thus make it possible to dissolve the internal ones (Sheptycki 1995: 622).”

Another player is Europol. It is designed to act as a law enforcement entity similar to the

FBI in the U.S. Unlike Interpol, it does have law enforcement powers (Sheptycki 1995).

Given the amount of international coordination, conflicts and organizational

problems are inevitable. One issue relates to the coordination of international training. If

not careful, coordinating countries, like the U.S., may design a training program that

addresses a single, specific country’s needs while minimizing others. This could develop

animosity between participating states and most likely weaken ties the agencies have

worked so hard to establish (King & Ray 2000). Another issue is the overlapping of law

enforcement agencies domestically and internationally that must cooperate with each

other in order to solve transnational crimes. The overlap may lead to a divisive,

competitive working relationship that may make networking difficult (if not) impossible

(Sheptycki 1995). Also, the sharing of criminal intelligence between nations have caused

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some problems. According to Sheptycki (1995), advancing telecommunications and

management information systems are key indicators of growth in transnational policing.

When there is a continued resistance to computer information networking between states,

more barriers are being built toward police co-operation. Part of the problem, he thought,

originated from current political and legal institutions keeping the formation of a unified

information system from occurring. Apparently there are certain legal barriers that

involve data protection that have led to their resistance demonstrating the legal obstacles

with which domestic and international law enforcement agencies must deal (Sheptycki

1995).

Nevertheless, in order for domestic and international agencies to effectively

reduce terrorist activity, they must deal with both domestic and international laws. As a

result, an examination of the legal responses that terrorism has inspired should be

observed and assess the issues that have arisen in light of recent events specifically

pertaining to the terrorist attacks on September 11, 2001. Domestically, the United

States’ legal policies toward terrorism has been conflicting and in some cases

contradictory particularly after 9/11. Traditionally, the manner in which the courts

prosecuted accused terrorists are divided under two categories—domestic and

international terrorism. Domestic cases were treated as terrorism cases if specified targets

had been attacked and the political motives were present, yet the courts had minimized

those motives (Turk 2002). The reasoning behind it lies on the fact that previous

prosecutions were not successful; instead, they became more politicized by the

defendants who were always charged with seditious conspiracy, and the “juries were

reluctant to convict persons already in prison for crimes related to the conspiracy (Turk

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2002: 346).” As a result, the U.S. Congress added a chapter on “terrorism” in the Federal

Criminal Code whereby the offense was defined by its specified targets allowing

prosecutors to dismiss political motivations from the offense. Thus, juries would be able

to convict the accused more easily (Turk 2002).

Although, juries were more likely to convict if the evidence linking defendants

was strong and the severity of the offense was high (Smith & Damphousse 1998).

According to the “liberation hypothesis” (first proposed by Kalvin and Zeisel in 1996 in

response to their study on jury behavior) and a study testing it on two comparison groups

—terrorist and non-terrorist—results demonstrated that jurors would exercise broader

discretion in finding defendants guilty when the evidence was weak and the crimes were

less severe (Smith & Damphousse 1998). So, it would not had mattered if the political

motivation would have been excluded if the crime produced a sufficient amount of

intensity, a conviction would have been highly likely. Interestingly, domestic cases of

terrorism were prosecuted more often under racketeering and RICO statutes in order to

secure convictions; whereas, international cases classified by the courts as "terrorism"

were convicted less frequently than their domestic counterparts. This is due to the fact

that the U.S. government is understandably more reluctant to reveal intelligence for them

and because defendants consistently pleaded not guilty forcing to take the cases to trial

where proving guilt is more politically difficult than plea-bargaining (Turk 2002). In fact,

Smith and Damphousse (1998) noted that terrorist defendants rarely, if ever, plea guilty

explaining why cases that do get convictions show a positive relationship with sentence

length. Therefore, the U.S. government was faced with a problem. If it follows the

criminal law and procedures to the letter, accused terrorists are less likely to receive

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convictions. If military tribunals are used, the fact that some due process rights (which

are usually afforded in criminal courts) will be lacking will receive public condemnation.

It is a violation of human and civil rights. If defendants are handed over to foreign courts,

there is no guarantee that their punishments will fit their crimes nor reach trial for that

matter (Turk 2002). So, a solution was needed.

In a way, the events of September 11, 2001 resolved some but few issues. Instead,

more questions arose, and the international response was both supportive and critical. On

September 12, 2001, the U.N. Security Council adopted U.N. Resolution 1368 that

condemned the terrorist attacks of 9/11 and expressed an international determination to

fight terrorism. Resolution 1368 also identified terrorism as a threat to international peace

and security. On September 28, 2001, U.N. Resolution 1373 was adopted reiterating

1368’s characterization, but it also called for all states to fight terrorism and those that

support and assist in its activities (Greenwood 2002). Keramidas (2002) explained further

that Resolution 1373 not only called for a multi-lateral effort but it also “imposes very

strict responsibilities on all member states (p.149).” It required that they coordinate both

information and investigative efforts in order to become signatories to both bilateral and

multi-lateral legal agreements (Keramidas 2002). The fact that the U.N. responded to

9/11 is not surprising; it is that it not only denounced the attacks, but it demanded

member states to act against similar attacks that threaten international peace. The U.N.

had made previous resolutions describing terrorism as a threat to international peace, but

it never demanded any action to be taken. For example, the U.N. passed Resolution 748

(1992) describing Libya’s failure to show that it had broken terrorist ties, but it did not

state the consequences of its non-compliance; instead, it passed Resolution 883

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reaffirming 748. The U.S. embassy attacks in Dar-es-Salaam and Nairobi are other

examples (Greenwood 2002).

Consequently, member states had to modify their own policies in order to adhere

to Resolution 1373. The United Kingdom, for instance, had implemented the Proceeds of

Crime Bill 2001 giving police extra powers to seize property at the beginning of an

investigation before any change is made relating to terrorist financing and/or activities.

International cooperation and assistance is also a condition of the bill adding to two

previous measures the U.K. had initiated—the Anti-terrorism, Crime, and Security Act

2001 and the Terrorism Act of 2000. In the U.S., Congress passed the Patriot Act so that

terrorist activities can be tracked within its borders investigating offenses related to

money laundering, financing, and planning (Keramidas 2002). In Australia, the Migration

Act and the Refugees Protocol had been modified altering immigration, visa applications,

and asylum laws and practices (Taylor 2002). Section 46A(1) under the Migration Act,

for example, stated that a visa application can be invalidated to an “offshore entry

person” if he is considered by the Australian government as an “unlawful non-citizen”

(Taylor 2002: 127).

Although with all the international support the U.S. had received since the events

of 9/11, it was the subsequent attack on Afghanistan that divided the world and raised

questions regarding a state’s right to defend itself under Article 51 of Chapter VII of the

U.N. Charter. In addition, it also addressed how the exercise of that right applied to both

state-sponsored terrorism and non-state terrorist groups like Al Qaeda. On October 6,

2001, the U.S. attacked Afghanistan bombing areas the de facto ruling regime, the

Taliban, had controlled. According to Smith (2001), the U.S. did a good job building its

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case against the Taliban connecting them with Osma Bin Laden’s AlQaeda network.

Beard (2002), Greenwood (2002), and Byers (2003) agreed that the connection was

undeniable. The Taliban had harbored Bin Laden and allowed his terrorist network to

operate from their territory. Despite U.N. demands to surrender Bin Laden to the U.S.

after being indicted for the East Africa U.S. embassy bombings in 1998, the regime

refused to adhere the international organization’s demands. Even after two official U.N.

resolutions (1267 and 1333) condemning and calling to sever ties to the terrorist network

(not to mention various economic and diplomatic sanctions), the Taliban again refused to

surrender Bin Laden (Beard 2002). After 9/11, the Taliban continually refused to hand

him to the U.S. Thus, the U.S. attacked the desert region. On October 7, 2001, the U.S.

sent a letter to the U.N. Security Council announcing its right to exercise Article 51’s

provision regarding a member state’s right to defend itself against an armed attack.

This stirred debate among scholars over the appropriate use of Article 51 with

respect to the attack on Afghanistan (Byers 2003, Greenwood 2002, Smith 2002,

Sucharitkul 2002, and Smith 2001). Byers (2003), for example, did not think the U.S.

needed it since there was enough evidence to support a military campaign. Sucharitkul

(2002) would have disagreed citing that the attacks were conducted in order to prevent

possible future ones motivating preemptive measures to secure the nation. Glennon

(2002) would disagree about the effectiveness of the article noting inconsistencies in the

language and the reality of state behavior, which restrains the U.S. from properly

defending itself. Smith (2002), on the other hand, believed Article 51 had given the U.S.

enough freedom to act on the Taliban regime and Al Qaeda. While, Weiss (2002)

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believed that the Bush administration misinterpreted the article’s provisions so that they

could justify their already U.N. sanctionless military strikes.

Although, the United States’ use of the article justifying military retaliation

against another state under the blanket of self-defense is not a new practice. According to

Beard (2002), the U.S. used it when it bombed Libya in 1986 in response to a bombing of

a German nightclub where an American was killed. Apparently, the U.S. claimed that the

bombing was one of many planned attacks on Americans by Libyan-based terrorists.

Zubel (1999) corroborated by citing the Pan Am flight 103 bombing over Lockerbie,

Scotland as among the many terrorist attacks planned by Libyan terrorists. In both

instances, the U.S. demanded the extradition of the suspected culprits and was denied by

the Libyan government. So, the U.S. launched attacks against Libya. Another example

involved the 1993 cruise missile attack on Iraq in response to a failed assassination

attempt on U.S. President George Bush, Sr. The day following the strikes, the U.S.

claimed that it acted in self-defense under Article 51. In another incident, the U.S.

attacked Afghanistan in 1998 in response to the U.S. embassy bombings in Tanzania and

Kenya. Again, the U.S. claimed self-defense under the article (Beard 2002).

However, the exact meaning in the words of the article is still debated. Article

51of the U.N. Charter states:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security (Beard 2002: 569).

According to Greenwood (2002) and Glennon (2002), the concept of “armed attack”

generally referred to the use of military force by states limiting the scope of who can be

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targeted. Since Afghanistan did not send any of its troops on the 9/11 suicide attacks or

used arms against U.S. citizens on them, Glennon (2002) would agree that the U.S. acted

outside the article’s provisions. Greenwood (2002) believed that such a restraint should

not be imposed on this matter since the recent U.N. resolutions (1368 and 1373)

recognized the U.S. right to self-defense and therefore implied that the 9/11 attacks

constituted an “armed attack” under the article. Beard (2002) agreed citing Article 2(4) of

the same U.N. charter that specifically states that “every State has a duty to refrain from

organizing, instigating, assisting or participating in terrorist acts in another State or

acquiescing in organized activities within its territory directed toward the commission of

such acts, when such acts involve a threat or use of force (p.566).” For Beard (2002),

Article 2(4) is basically holding states accountable for any state-sponsored act of

terrorism. Interestingly, both Article 2(4) and 51contradict each other making U.N.

response to any “armed Attack” difficult to ascertain when faced with terrorism (Glennon

2002).

Another issue related to the U.S. right to use the self-defense provision under

Article 51 to justify U.S. military strikes on Afghanistan is the level of need and

proportionality of such strikes. Although a state may be acting in accordance with its

legal right to self-defense, the use of force must be limited to a degree necessary to

defend against the attack, and it must be proportional to it (Beard 2002).

In addition, the right to use force in self-defense can be preempted when the Security Council takes measures necessary to maintain peace and security. A final condition is that a state which has not itself been the victim of an armed attack may use force by way of collective self-defense only if a state which is the victim of such an attack invites it to do so (Greenwood 2002: 311).

Two problems are noted that challenges the U.S. position on self-defense. First,

according to a classic definition of a state’s right to self-defense under international law

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—the Caroline Formula—the requirement for the necessity condition must be

immediacy. Meaning, the threat in question is immediate such that there is no room or

time for any form of deliberation to prevent an attack. The time gap between the 9/11

attacks and the military response by the U.S. on October 6 was such that the need to repel

the attack was absent. Instead, the U.S. attack on Afghanistan would be seen more as a

reprisal or retaliatory act in the eyes of the international community. In fact, the U.N.

Charter and customary international law forbids any armed retaliation against another

state (Beard 2002 & Greenwood 2002). Although. Greenwood (2002) did argue that since

the “Caroline Formula” is a classic argument for self-defense, it did not rely on the fact

that the attack was not by a state or that it matters. In addition, it made no distinction as if

the formula applied to armed attacks by non-state actors. Therefore, it may not be

applicable to the current situation in question.

The second problem facing the U.S. position on the Afghanistan operation is

culpability. The 9/11 attacks were committed by Al Qaeda, yet the military response

occurred in Afghanistan without the consent of the Taliban. Although, the Taliban were

also targeted, and it was not recognized as an official government by most states.

However, the U.S. did not accuse Afghanistan of participating or planning the 9/11

attacks. Therefore, as some would argue (Byers 2003, Weiss 2002, and Smith 2001), the

U.S. should not have targeted Afghanistan (Greenwood 2002). Greenwood (2002),

nevertheless, disagreed with this criticism. The Taliban had violated international law by

allowing Al Qaeda to operate in the region. The Taliban is a de facto government that

controlled the country, and, thus, their actions can be classified as state actions. The

Taliban were in U.N. violation by refusing to extradite Bin Laden under two U.N.

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resolutions. Finally, they had harbored Al Qaeda after 9/11 thus permitting the U.S. to

respond in accordance with the “Caroline Formula” describing a state’s right to defend

itself (Greenwood 2002).

As for the issue of proportionality, if in the process of a state defending itself

responds in a degree that is disproportionate to the threat it is designed to meet and not by

what occurred in the past, than it can no longer claim that it is acting in self-defense

(Greenwood 2002). Greenwood (2002) believed that the amount of force applied on

Afghanistan by the U.S. was proportionate enough to oust the Taliban regime. Smith

(2001) disagreed citing that a worldwide consensus may see the U.S. acting out on the

people of Afghanistan for the events of 9/11. If that were so, then they would be at a

diplomatic disadvantage because the people were not culpable. Any military operation

would then be considered as bullying and might generate sympathy and support for the

terrorists by the populace thus creating more enemies (Turk 2002).

Considering the complexity of terrorism and its regulation, some

recommendations are offered in order to help alleviate the problem if only slightly

reducing its potency. Weiss (2002) suggested that the U.S. (for its own part) should try to

pursue a more sensible foreign policy that addresses issues such as the environment,

poverty, racism, gender inequality, or nuclear weapons that all have some impact on

terrorism. Mueller and Mueller (2000) suggested that the U.N. should reconsider

imposing economic sanctions on difficult states as a punitive measure because its results

are as destructive as any weapon of mass destruction that could unforeseeably promote

further terrorism. According to Turk (2002), terrorism rises out of a people’s

hopelessness and injustice that makes it more (if not) inevitably appealing. An alternative

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might be an “export control process” that could control a difficult state’s ability to import

certain types of goods (Mueller & Mueller 2000: 178).

Aside from that, the establishment of an International Criminal Court may be

needed to resolve extradition issues concerning apprehended terrorists (Greenwood 2002,

Turk 2002, and Smith 2001). Currently no such court exists. The only ones that may

resemble one that are active are restricted to Yugoslavia and Rwanda, and even then, they

are limited to trying certain crimes. The International Court of Justice could have been a

nice substitute, but it does not have any criminal jurisdiction (Greenwood 2002).

Interestingly, an International Criminal Court would have been active if it had gathered

the necessary 60-state ratification, but it did not (Greenwood 2002). Some scholars

blamed the U.S. for refusing to ratify it and influencing other states to do the same (Turk

2002 & Smith 2001). Although, an International Criminal Court would not have been

able to try the accused co-conspirators of the 9/11 attacks despite receiving ratification; it

would have been established after that horrific date thus prohibiting it from trying it

retroactively (Greenwood 2002). In the case of 9/11, the only way the international

community could try the co-conspirators would be if the Security Council had created an

International Criminal Tribunal for that specific purpose.

Another avenue scholars recommend is the initiation of a form of judicial review

for U.N. resolutions. Currently, the U.N. Charter does not give the International Court of

Justice the authority to review the legal actions of the Security Council. Although, Article

96 of the U.N. Charter does give the Security Council and the General Assembly the

authority to seek legal advice from the International Court of Justice (Zubel 1999).

However, it is not the same especially when U.N. resolutions become contradictory to

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other past resolutions affecting the state of the issue in question. According to Glennon

(2002), the International Court of Justice has not taken an active role in settling disputes

between states. Why? Zubel (1999) might say that a standardized system of determining

precedent does not currently exist.

Thus, upon examination of the issues facing the “war on terrorism,” a legal and

humanitarian approach may be seen as the most sensible and effective way to reduce

terrorism, yet that does not mean that law enforcement should be marginalized in

retrospect since it is needed to find the culprits responsible for perpetrating terrorist

activities. Most importantly, an international consensus must exist on defining the word,

“terrorism,” and describing its many subcategories. Otherwise, any effort to reduce it will

be wasted. If there is a lesson to be learned from September 11, 2001, it is that terrorism

affects everyone in the international community. Therefore, an international, multi-

lateral, joint effort is demanded. No. It is imperative and thus crucial for establishing and

maintaining international peace and security.

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