ONE OF THE MOST DIFFICULT QUESTIONS ARISING OUT OF 9/11 IS WHETHER THE CONCEPT OF “ARMED ATTACK” IN ARTICLE 51 HAS UNDERGONE A REVOLUTIONARY CHANGE SO THAT IT NOW EXTENDS TO ATTACKS BY NON-STATE ACTORS IN THE ABSENCE OF ANY STATE COMPLICITY.

BY GEORGE KASEKENDE


It is generally agreed around the world that the tragic events of 11 September 2001 [9/11] marked the beginning of a new era in the course of international affairs, and ended a period of general optimism generated by the fall of the Berlin wall. According to some scholars of international law, it is also having “shattering consequences for international law” by “disrupting some crucial legal categories”. [1] Catherine Gray has stated that one of the most difficult questions arising out of 9/11 is whether the concept of “armed attack” in Article 51 has undergone a revolutionary change so that it now extends to attacks by non-state actors in the absence of any state complicity. For many states and commentators the concept of self-defense against non-state actors was problematic before 9/11. Few were willing openly to support such a right to use force against a state where the terrorists operated or were present, in the absence of the complicity of the state in the terrorist acts. [2]


In seeking to answer this question, this paper is divided into four parts: the first seeks to define “terrorism” through international treaties, as well as various United Nations [U. N] resolutions. The second part examines how international law characterizes the events of 9/11, should they be seen simply as crimes, or are they a threat to international peace, or an armed attack? The third part explores the circumstances under which the use of force and the right of self-defense is permissible under international law and part four considers whether the right of self-defense has been expanded under customary international law.


Part 1: “Terrorism” through international treaties as well as various U. N. resolutions


Mark Popiel has stated that currently, “there is no generally accepted definition of terrorism under Customary Law.” [3]By and large, this is due to the fact that definitions of terrorism are outcome sensitive. More precisely, “the dispute over what constitutes terrorism reflects in part the hackneyed saying that one person’s terrorist is another’s freedom fighter.” [4]For instance, Nelson Mandela, a Nobel Prize winner and the first President of South Africa, in his early years was on the “State Department’s list of international terrorists.”Now, “he is a hallowed and reserved symbol of the struggle for justice and equality.” [5]


In defining ‘terrorism,’ it is helpful to look to U.N. Resolutions for guidance. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nationswas adopted by the General Assembly on October, 24, 1970, [1970 Declaration].In its preamble, the 1970 Declaration advocated a limitation on the “threat or use of force” by States in “their international relations.”It also held that States, among other things, had a “duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State.”[6] Mark Popiel has stated that while the 1970 Declaration does not define “acts of terrorism,” the language does set parameters within which States should operate; to refrain from acts that involve “a threat or use of force.” [7]


He continues to state that in 1985, due to profound concerns about the world-wide escalation of acts of terrorism in all its forms, the General Assembly in Resolution 40/61 [8] made a bold move by condemning “all acts, methods, and practices of terrorism” as criminal.Moreover, the General Assembly once again called upon all States to fulfill their obligations under international law to refrain from organizing, instigating, assisting or participating in terrorist acts. [9] In 1987, the General Assembly reaffirmed Resolution 40/61 through Resolution 42/159.[10] More importantly, the General Assembly acknowledged, “that the effectiveness of the struggle against terrorism could be enhanced by the establishment of a generally agreed definition of international terrorism.” [11] However, the problem of defining “terrorism” still plagues the international community to date.


In the midst of 9/11 terrorist attacks on New York and Washington, the United Nations Security Council unanimously passed Resolution 1368 (2001). [12] In its preamble, Resolution 1368 recognizes the right of individual and collective self-defense as defined by Article 51.Some commentators have argued that this language clearly authorizes states to use-force to combat terrorism. [13] Mark Popiel says however, one should not draw this conclusion so abruptly. Resolution 1368 by no means serves as a green light for States to use-force against terrorist groups. [14]


In order to combat the global threat of terrorism, many states have entered into international agreements/treaties. Generally, these international agreements prohibit crimes that have come to be regarded as ‘universal crimes’ under Customary Law. Universal crimes have been held to constitute “piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism.”However, by no means do these crimes establish a general definition of terrorist acts. [15]


Today, there are over 12 important global conventions [16]for the suppression of terrorism, as well as a number of regional terrorist conventions. Common to these is that acts of terrorism are treated as criminal offences, to be dealt with by national courts of law. [17]GeirUlfstein is of the view that the conventions define the offences that they cover and impose on states a duty to investigate such offences and either bring the perpetrators to justice or extradite suspects. However, the prevention of terrorism has not been unproblematic in international law. There has been disagreement both about what ought to be deemed to be terrorism and about whether states may respond with force if they are subjected to a terrorist attack originating from inside the borders of another state. [18]


Part 2: How international law characterizes the events of 9/11, should they be seen simply as crimes, or are they a threat to international peace, or an armed attack?


Christopher Greenwood has stated that it is not in doubt that the events of 9/11, that is, the hijacking of the four aircrafts and the subsequent killing of those on board, and those who died in the World Trade Center and the Pentagon were crimes under the ordinary criminal law of the United States of America [USA]. [19] Nor is there any doubt that international law recognizes the jurisdiction of the courts in the USA to try those responsible for planning these crimes and anyone who assisted them doing so. However, the fact that international law recognizes the jurisdiction of the USA to try a particular crime does not, however, mean that it requires other states to co-operate in enabling such a trial to take place. [20] There are a few problems to consider.


He has argued that first of all, there is no general duty under international law to surrender a defendant to stand trial in another state. Such a duty to extradite arises where there is a treaty of extradition in force between the states concerned. In any case, many States do not have an extradition treaty with the US. [21] Under Chapter VII of the UN Charter, the Security Council has the power to require a State to surrender persons for trial where there is a threat to international peace and security, and it has exercised that power in Security Council Resolution 748 (1992), which required Libya to surrender the persons accused of the Lockerbie Bombing.


Secondly, for many states there would be a serious legal obstacle to surrender someone wanted for 9/11 attacks to the USA because they have retained the death penalty for certain offences and anyone convicted of perpetrating the murders of 9/11 would be likely to receive that sentence. [22] Thirdly, it is questionable whether anyone accused of perpetrating the crimes of 9/11 could receive a fair trial in the USA, due to the extent of horrific nature of the crimes. [23]


The question then is, which international court should have tried the terror suspects? The International Court of Justice does not have criminal jurisdiction. The International Criminal Court was not in existence by 9/11, but arguably today, it can be used to try the suspects. Accordingly, he further argues that the only solution to bring the terror suspects to trial before an international court would be if the Security Council created one for the purpose of trying them. It has the power to do that, as the Yugoslav and Rwandan precedents demonstrate, but it is highly unlikely that the Security Council would exercise that power in this case. [24]


A threat to, or breach of international peace and security is what brings into play the powers of the U. N Security Council to take economic, political and even military measures under Chapter VII of the UN Charter. [25] Christopher Greenwood has stated that while the concept of “threats to peace” was at one time considered to be limited to threats of military force emanating from a State, in more recent years the Security Council has had no hesitation in treating acts of international terrorism as threats of peace. [26]For example, Security Council Resolution 748 (1992) characterized Libya’s failure to demonstrate by concrete actions its renunciation of terrorism as a threat to international peace and security, a decision it subsequently reaffirmed in Resolution 883 (1993). The Security Council took a similar stance in its resolutions against the attacks on the USA Embassies in Dar-es-Salaam and Nairobi, neither of which was clearly linked to a State. In addition, the Security Council adopted a Resolution 1269 (1999) condemning international terrorism in general as such a threat. [27] The consequence of classifying 9/11 attacks as a threat to international peace and security means that the Security Council can take measures to restore international; peace and security, as indeed it did in this case.


Having characterized the attacks of 9/11 as international crimes and a threat to international peace and security, does this mean that they do not amount to an armed attack? Whether the attacks indeed constitute an armed attack is an important question, because Article 51 of the U. N Charter preserves 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 measures necessary to maintain international peace and security”. See, Military and Paramilitary Activities in and against Nicaragua 1986 I. C. J 14, para. 176. At the same time, Article 51 requires that there be an “armed attack” prior to the resort to self-defense. Force or intervention below the level of an armed attack does not trigger a right of self-defense. [28]


Mark Popiel has argued that for the most part, under the traditional/classical theory, the right of self-defense is only justified against State actors.As such, it appears that as a general rule, terrorist attacks, which concern non-State actors, would fall outside the bounds of constituting ‘armed attacks’ under the right of self-defense. [29] However, he says, one must look further to ascertain such an assumption. While there is no universally accepted definition of ‘an armed attack,’ by and large, it is considered to be an ‘armed attack’ when armed force is directed against the territorial integrity of a State. [30] An armed attack in this context means a very serious attack either on the territory of the injured State or on its agents or citizens while at home or abroad. Example include: intervention by the United Kingdom in Suez (1956), Israel in Entebbe (1976), USA in Dominican Republic (1965), Grenada (1983) and Panama (1989).


Furthermore, in order for an armed assault to constitute ‘an armed attack,’ Mark Popiel has said that such an assault must form part of a consistent pattern of violent aggression rather than just being isolated or sporadic. [31] Taking into account terrorist attacks, the ICJ in Nicaragua v. United States 1986 case held, that acts of armed bands must “occur on a significant scale” before they would constitute armed attacks permitting “individual or collective right of self-defense.” [32]


Under Article 3 of the Definition of Aggression Resolution, [33] the General Assembly acknowledged certain acts, which qualify as acts of aggression. [34]Consequently, it appears that by and large, the traditional theory is inclined to exclude terrorist acts as constituting “armed conflict.” Accordingly, unless terrorist attacks can be imputed to the State from which the terrorists originate, it is difficult to comprehend how the application of Article 51 to terrorist attacks advances the argument for permissibility of military force against terrorists. [35]


He has further stated that while it is true, that terrorist acts which are imputed onto States may trigger the right to self-defense, it is unsettled however, what is really required when the circumstances of such actions are not transparent. This inconsistency is due in part to the law of jus ad bellumwhich was founded on the assumption that disputes would arise between States, and as such did not address non-State actors. [36] In resolving this unsettled question, based on the ICJ decision in Nicaragua v. United States 1986 case, it appears that where “private individuals or groups with no ‘transparent relationship’ with the State are responsible,” one must look at whether the State or States in question exercised “effective control” over the wrongdoers. [37]However, there is no clear definition of what control or responsibility a State must have over the existing, ongoing, or imminent terrorist attack, for the right of self-defense to be triggered. [38]


Mark Popiel has taken note of the fact, that as a general rule, States are not responsible for all wrongs that are “orchestrated on or emanating from their territory.” But at the same time, States have an obligation to oversee their citizens or guests within its borders. This is said to be a well-established international principle. [39] He argues that in view of that, States that either act passively or deliberately turn a blind eye to terrorist activities within its borders are held to acquiescence to such actions, thereby breaching their duty of sovereignty. In applying this reasoning, ‘Victim States” may therefore impute non-State actor violations onto the State which failed to exercise its control within its borders. [40] Accordingly, it may be possible for “Victim States” to respond with force against terrorist groups that carried out the attacks, as well as, the State or States that failed to exercise “effective control” over the wrongdoers.[41]


Responsibility for 9/11 was quickly attributed to the Al Qaeda terrorist organization led by Osama bin Laden which had been responsible for several earlier attacks on USA targets dating back to 1993. [42] The immediate international reaction included: U. N Security Council and General Assembly passing unanimous resolutions condemning the terrorist attacks, Security Council Resolution 1368 (2001) affirmed the right of self-defense in response to terrorist attacks for the first time. [43] NATO invoked Article 5 f its treaty for the first time in its history. [44] The OAS also invoked collective self-defense, only Iraq directly challenged the legality of the military action. [45] This serves to show that by and large the 9/11 attacks have been considered as “armed attacks” for purposes of Article 51 of the U. N. Charter. After 9/11, the USA first unsuccessfully demanded that the de-facto government of Afghanistan (The Taliban) hand over the terrorists, but then exercised its right of self-defense by pursuing a military campaign in Afghanistan against both the terrorist organization and the Taliban.


Part 3: Circumstances under which the use of force and the right of self-defense is permissible under international law


According to Article 51 of the Charter, Member States may resort to use of force if (1) such force is a necessary self-defensive measure to an armed attack or (2) such force has been authorized by the Security Council on the basis that the Council deems it necessary in order to maintain or restore international peace and security. Mark Popiel has emphasized the fact that what Article 51 of the Charter provides to Member States is a “narrow authorization” to “defend themselves against a continuing armed attack until such time as the Security Council intervenes to maintain and restore peace and security”. [46]


As the Caroline Case in 1837 demonstrates, for self-defense to be justified, there must be an imminent threat of force or a continuing attack upon the ‘Victim State.’It is also universally accepted that in order for the use of force to constitute self-defense, it must also meet the requirements that the force used is both necessary and proportionate. [47] Necessity implies a degree of immediacy. As such, while immediate response by a ‘Victim State’ is not mandatory, the longer the time lapse, the more tenuous the argument becomes as to the “urgency of” employing the self-defense exception.[48]

Christopher Greenwood has stated that the requirement of necessity in self-defense means that it is not sufficient that force is used after an armed attack. It must be necessary to repel that attack. The use of force in response to an armed attack which is over and done with does not meet that requirement and looks more like a “reprisal”. The USA action in Afghanistan has therefore been criticized for constituting what some considered to be a reprisal, rather that a genuine action in self-defense [49] in contrast to what happened after the attacks on the USA embassies in Kenya and Tanzania in 1998, when the USA swiftly responded with missile strikes against targets in Afghanistan and Sudan. However, even when the military operations came in October, they were on a very large scale. [50]


Equally important is that, use of force must also be based on evidence of an imminent second attack or on a continuing attack that needs to be pre-empted according to Mark Popiel. Therefore, it is not the first “armed attack” that triggers the right of self-defense; on the contrary, it is the imminent threat of the second attack that triggers such right. [51] When a State resorts to self-defense, it remains a matter of debate whether an armed attack must have already occurred or can instead simply be imminent. In an age of weapons of mass destruction, some States and scholars assert that a right of “anticipatory” self-defense must exist since it is unreasonable to expect a State to refrain from responding to a potentially devastating, imminent attack. [52]Other scholars doubt the ability of a State to predict a future armed attack and view the concept of “anticipatory self-defense” as an undesirable erosion of the requirements of Article 51 of the U. N Charter. [53]


The scholars in support of right to anticipatory self-defense assert that the events of 9/11 should not be considered in isolation. Taken together with other events such as the USA Embassy attacks in Tanzania and Kenya and the attack on the USS Cole, for which Al Qaeda claimed responsibility, they posed a clear threat of further outrages to come. In the USA case, an imminent threat of armed attack was undeniably in existence after 9/11 and the military action taken by the USA and its allies is seen as a forward-looking measure to prevent that threat from materializing, rather than as a backward-looking act of retaliation for what had gone before. [54]


Christopher Greenwood has stated that even where a State is entitled to resort to force, its conduct of the ensuing hostilities must also comply with international law: first of all, action taken must be proportionate or it ceases to be self-defense and secondly, the conduct of hostilities must comply with international humanitarian law. [55] Proportionality does not require that the force be the mirror image of the initial attack, nor that the defensive actions be restricted to a particular geographic zone. Rather, proportionality will be assessed based on the result to be achieved by the defensive action, and not on the forms, substance and strength of the action itself. [56]


The USA and its allies attacked sites believed to house Al Qaeda personnel and equipment in Afghanistan and having concluded that they could not destroy Al Qaeda without removing the Taliban regime which had ruled most of Afghanistan for several years, also attacked the Taliban armed forces. [57] The USA attacks which were on a large scale and extended to the overthrow of the Taliban were disproportionate. The test is whether the force used by the USA and its allies was proportionate to the threat it was designed to meet, not to the events of the past. [58] The second requirement, compliance with international humanitarian law, is entirely independent of the requirements of self-defense.


Part 4: Whether the right of self-defense has been expanded under customary international law.


Christine Gray has stated that previous practice has shown that the invocation of self-defense to justify the use of force when faced with terrorist attacks has been used by a few States before 9/11. For example, the USA and Israel have used force in response to “terrorist attacks” on their nationals abroad, but many people regarded their use of force as going beyond the boundaries of the Article 51 provision. [59] It is important to note that the attack by the Israeli air force on the Beirut airport in 1968 was unanimously condemned by the Security Council in Resolution 262. [60] Similarly, Israel’s attack on Tunis in 1985 was vigorously condemned by Member States as an act of armed aggression against Tunisia’s territory in flagrant violation of the UN Charter by 14-0-1 in Resolution 573 (1985). [61]


In response to the USA attacks in 1986 against Libya, most States rejected USA’s argument that its action was a response to past terrorist attacks on nationals and also a means to deter future attacks. The States further argued that self-defense should be narrowly interpreted and could not be pre-emptive. [62] USA’s action in response to the attempted assassination of Bush Senior in April 1993, and the terrorist attacks in Tanzania and Kenya in 1998 largely received considerable sympathy from the Security Council. Other States said they understood USA’s actions, [63] but this did not mean that States wholly supported USA’s actions. By and large, the episodes show that USA and Israel’s actions looked more like reprisals, because they were “punitive rather than defensive”. [64] Christine Gray has stated that the “failure to condemn the USA should be taken to indicate sympathy and understanding, rather than acceptance of a legal doctrine which destroys the distinction between reprisals and self-defense and which the USA would never contemplate being used against itself”. [65]


Article 38 (1) (b) of the International Court of Justice provides one of the sources of international law as: “international custom, as evidenced of a general practice accepted by law”. [66] In order for a particular practice to be regarded as Customary Law, it must first be considered by States as a “general practice.” That is, “the result of the repetition of individual acts of States constituting consensus in regard to a certain content of a rule of law”. [67] Secondly, as a necessary ingredient in the formation of Customary Law, States must also possess a “sense of legal obligation” in adhering to certain legal principles. [68] As a result, Customary Law must be “authoritative”. [69]It must be regarded as a legitimate norm that is considered “binding law/acceptance as law”. [70] As such, this norm should “control state behavior” by having them comply with the requirements of that particular norm. [71]


Based on the above analysis, while some States have supported the application of Article 51 against terrorist attacks, at the same time, others have remained silent on the matter or rejected such actions. Consequently, it is still difficult to determine whether “terrorist attacks”, a term which the international community has still failed to define, in the absence of any State complicity have been elevated to the level of “armed attacks” under Article 51, since “general practice” and “its acceptance as law” is still unclear. The reality is that simply broadening the right of self-defense to include terrorist attacks as constituting armed attacks gives States a free rein to act as the WISH, which is RISKY.








BIBLIOGRAPHY:



1. Cassese, Antonio: Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law (2001) EJIL 993.


2. Gray, Catherine, International Law and the Use of Force (2004).


3. Greenwood, Christopher, International Law and the “War against Terrorism”, International Affairs Vol. 78, No. 2 (2002).


4. Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03).


5. Murphy Buergenthal, In a Nutshell, Public International Law 3rd Ed. (2003).


6. Ross E. Schreiber, Ascertaining OpinioJurisOf States Concerning Norms Involving The Prevention Of International Terrorism: A Focus On The U.N. Process, 16 B.U. Int’L L.J. (1998).


7. UlfsteinGeir, Terrorism and the Use of Force, Security Dialogue Vol. 34 No. 2 June 2003.













[1] Cassese, Antonio: Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law (2001) EJIL 993http://www.ejil.org/forum_WTC/NY-Cassese.pdf retrieved on 8th April 2008.


[2]Gray, Catherine, International Law and the Use of Force, at page 165 (2004).


[3]Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03) at page 16 http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf retrieved on 8th April 2008.


[4] Ibid.


[5] Ibid.


[6]Para. 9: Every State has a duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.


[7]Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03) at page 18 http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf retrieved on 8th April 2008.


[8] G.A. Res. 40/61, U.N. GAOR. 40thSess., Agenda Item 129, at 3, U.N. Doc. A/RES/40/61 (1985).


[9] The General Assembly…,

Deeply concerned about the world-wide escalation of acts of terrorism in all its forms, which endanger or take human lives, jeopardize fundamental freedoms and seriously impair the dignity of human beings.

1.Unequivocally condemns, as criminal, all acts, methods and practices of terrorism wherever and by  whomever committed, including those which jeopardize friendly relations among States and their  security;

6.Calls upon all States to fulfill their obligations under international law to refrain from organizing,  instigating, assisting or participating in terrorist acts in other States, or acquiescing in activities within  their territory directed towards the commission of such acts;

7.Urges all States not to allow any circumstances to obstruct the application of appropriate law  enforcement measures provided for in the relevant conventions to which they are part to  persons  who commit acts for international terrorism covered by those conventions.


[10] G.A. Res. 42/159, U.N. GAOR. 42ndSess., Agenda Item 126, at 1, U.N. Doc. A/RES/42/159 (1987).


[11]Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03) at page 21 http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf retrieved on 8th April 2008.


[12]U.N. SCOR, 56thSess., 4370thmtg. at 1, U.N. Doc. S/RES/1368 (2001).


[13]Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03) at page 22 http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf retrieved on 8th April 2008.


[14] Ibid.


[15]Ibid., at page 23.


[16] United Nations treaty Collection, Conventions On Terrorism, at http://untreaty.un.org./english/terrorism.asp retrieved on 8th April 2008.


[17]UlfsteinGeir, Terrorism and the Use of Force, at page 1 Security Dialogue Vol. 34 No. 2 June 2003 http://folk.uio.no/geiru/Terrorism%20and%20the%20Use%20of%20Force.pdf retrieved on 8th April 2008.


[18] Ibid.


[19] Greenwood, Christopher, International Law and the “War against Terrorism”, at page 302 International Affairs Vol. 78, No. 2 (2002).


[20] Ibid.


[21]Ibid., at page 303.


[22]Ibid., at page 304.


[23] Ibid.


[24]Ibid., at page 305.


[25] Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.


[26] Greenwood, Christopher, International Law and the “War against Terrorism”, at page 306 International Affairs Vol. 78, No. 2 (2002).


[27] Ibid.


[28]Military and Paramilitary Activities in and against Nicaragua (Nicar. v USA) 1986 I. C. J 14, para. 249.


[29]Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03) at page 9 http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf retrieved on 8th April 2008.


[30] Ibid.


[31] Ibid.


[32] Ibid.


[33]G.A. Res. 3314 (XXIX), U.N. GAOR 6thComm., 29thSess., 2319thplen.mtg., Supp. No. 31, at 142, U.N. Doc.A/9631 (1974).


[34] In general, these include (1) “the invasion or attack by the armed forces of a State on the territory of another State;” (2) “bombardment by the armed forces of a State against the territory of another State;” (3) “an attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;” and (4) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of considerable gravity.”


[35]Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03) at page 11 http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf retrieved on 8th April 2008.


[36] Ibid.


[37] Ibid.


[38] Ibid.


[39]Ibid., at page 12.


[40] Ibid.


[41] Ibid.


[42] Gray, Christine. International Law and the Use of Force, at page 159 (2004).


[43] Ibid.


[44] Ibid.


[45] Ibid.


[46]Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03) at page 7 http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf retrieved on 8th April 2008.


[47]Nicaragua 1986 Case, para.176, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, I. C. J 1996, para.41-42.


[48]Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03) at page 8 http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf retrieved on 8th April 2008.


[49] Greenwood, Christopher, International Law and the “War against Terrorism”, at page 311 International Affairs Vol. 78, No. 2 (2002).


[50]Ibid., at page 309.


[51]Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6Gonz. J. Int’l L. (2002-03) at page 8 http://www.gonzagajil.org/pdf/volume6/Popiel/Popiel.pdf retrieved on 8th April 2008.


[52] Murphy Buergenthal, In a Nutshell, at page 325, Public International Law 3rd Ed. (2003).


[53] Ibid.


[54] Greenwood, Christopher, International Law and the “War against Terrorism”, at page 312 International Affairs Vol. 78, No. 2 (2002).


[55]Ibid., at page 313.


[56] Murphy Buergenthal, In a Nutshell, at page 329, Public International Law 3rd Ed. (2003).


[57] Greenwood, Christopher, International Law and the “War against Terrorism”, at page 309 International Affairs Vol. 78, No. 2 (2002).


[58]Ibid., at page 314.


[59]Gray, Christine, International Law and the Use of Force, at page 161 (2004).


[60] Ibid.


[61] Ibid.


[62]Ibid., at page 162.


[63] Ibid.


[64]Ibid., at page 163.


[65]Ibid., at page 164.


[66] Article 38 ICJ Statute:

1.  The Court, whose function is to decide in accordance with international law such disputes as are  submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing rules expressly  recognized by the contesting states;

(b) international custom, as evidenced of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly  qualified publicists of the various nations, as subsidiary means for the determination of rules of law.


[67] Ross E. Schreiber, Ascertaining OpinioJurisOf States Concerning Norms Involving The Prevention Of International Terrorism: A Focus On The U.N. Process, 16 B.U. Int’L L.J. at page 309 (1998).


[68] Ibid.


[69] Ibid.


[70] Ibid.


[71] Ibid.



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