The Contemporary Terrorist Threat and the Attribution Requirement: In Search of a New Standard

Timothy Rooke

The Contemporary Terrorist Threat

Tal Becker writes: “The prospect of non-conventional weapons in the hands of terrorists is the doomsday scenario of our age”.[1] Terrorism has evolved into a threat with limitless potential, detached from normative morality. The ability to unleash mass sickness, death, and destruction has reached a far greater order of magnitude.[2] Terrorism wields State-like power without the need for State support. Modern-day terrorists operate less in an organization and more in accordance with a movement or social network; they are like members of a cult, receiving religious motivation and broad instructions via radio broadcasts, satellite television or, increasingly, the internet.[3] They transcend jurisdiction and require no fixed address. Their objectives are unattainable representing an ideological movement, not a finite group of people, which initiates and inspires even if it no longer directs.[4] It is no longer a question of if terrorists will successfully use a weapon of mass destruction, but when.[5]

 

 

 

 

 

 

Chapter One: Introduction

Terrorism was first conceived as a concept to aid the French Government during the Reign of Terror. However, as Myra Williamson highlights:

"The meaning of “terrorism” has undergone a transformation. During the reign of terror a regime of terrorism was used as an instrument of governance, wielded by a recently established revolutionary state against the enemies of the people. Now the term “terrorism" is commonly used to describe terrorist acts committed by non-state or subnational entities against a state”.[6]

There is no universally recognised definition of terrorism in international law. The connotations terrorism shares with sociology, psychology, politics, morality and religion mean that it has become weighed down by extra-legal baggage, rendering a universal definition insurmountable. The exact meaning of terrorism relies upon a person’s or nation’s philosophy, leaving the concept subjective.[7]

Consequently, the legal community has resorted to a “sectoral approach”. The “sectoral” conventions operate on the assumption that some actions can be considered of international concern in themselves, circumventing the need to rely on a definition.[8] This has been a common approach in many terrorist conventions.[9] Andrew Byrnes criticises terrorist treaties in general, stating that:

they all focused on actions by non-State actors and the State was seen as an active ally in the struggle against terrorism – the question of the State itself as terrorist actor was left largely to one side”.[10]

This criticism is concerning. As Williamson highlighted, terrorism’s transformation has resulted in it being conducted by non-State, or private, actors. However, it is widely considered by commentators that Article 8 of the International Law Commission Draft Articles is the necessary mechanism to attribute the terrorist activities private actors to States.[11] The ILC Draft Articles are a vital instrument of international law, regulating the responsibility of States. In order for the acts to be rendered imputable, Article 8, which has been supplemented by case law, requires a relationship between the private actor and the State of sufficient reliance.

This dissertation explores issues of attribution in relation to private terrorist conduct in order to establish whether the concept of attribution is suitably placed to tackle the contemporary terrorist threat. Chapter Two analyses Article 8 and the relevant case law, looking to highlight its unsuitability to serve as a legal mechanism in the context of terrorism. Chapter Three establishes the problematic consequences of Article 8 regarding legitimately making a forcible response to perpetrators, as well as highlighting how Article 8, when concerning terrorism, no longer represents State practice. Chapter Four assesses alternative ways to regulate attribution, both generally and specifically related to combatting the contemporary terrorist threat.

 

 

 

 

 

 

 

 

Chapter Two: Article 8 of the ILC Draft Articles, Nicaragua and Genocide

The non-attribution principle is a foundational aspect of the law on State responsibility. It advocates that the conduct of a person or group of persons not acting on behalf of the State shall not be considered as an act of the State under international law.[12] Put simply, a State will only be held directly responsible for its own actions. However, Article 8 represents an exception to this rule as it imputes the conduct of non-State actors, including terrorists, to the State. For this rule to apply, it requires that the private actor to be a de facto organ of the State. A de facto organ of a State has been held to occur if: “the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”.[13] If satisfied, the action of the non-State actor will be held as attributable to the State.

2.1       Nicaragua and effective control

Article 8 was first considered in the Nicaragua case, which turned in part on US support to the contras, a paramilitary group, and whether the conduct of the contras could be imputed to US.[14] The US provided the contras with: “logistic support, the supply of information, the use of sophisticated methods of communication, the deployment of field broadcasting networks, radar coverage, etc”.[15] The ICJ devised two tests of establishing attribution of private conduct to a State organ: “complete dependence” and “effective control”. However, neither were satisfied. The former test dictates: the relationship between the state and any such group must be so much one of dependence on one side and control on the other.[16] In essence, the test of complete dependence requires the private actor to have no real autonomy from the controlling State.[17] If this test is satisfied, the entire functions and operations of the de facto group are attributable to the dominant State. This means the de facto group, possibly a terrorist group, is considered an organ of the State, thus the terrorist activity in its entirety becomes the direct responsibility of State. 

The latter test of effective control prescribes: if the contras did not form de facto organs, their conduct could still be attributed to the US on a case-by-case basis if the State could be said to have direction and control over a particular operation. This imputes specific operations conducted by a private actor to a State. Regarding terrorism, it could mean the targeting of or attack on a particular building as opposed to attributing an entire mission performed by a non-State actor.

2.2       Tadić and Overall control

The case of Tadić relied on Article 8 of the ILC Draft to determine whether the dispute in question was of international character. The International Criminal Tribunal of Yugoslavia’s reasoning is subject to severe academic and judicial criticism.[18] Nevertheless, the tests purported by the Appeals Chamber remain relevant.[19]

The ICTY devised two rationales. For individuals or unorganised groups, the effective control test should apply when imputing private action to a State. However, controversially, the ICTY invoked a standard of overall control for organised and hierarchically structured groups, typically an armed band or rebel force.[20] If, by looking at the “relationship of agency, control and dependency between a state and non-state actor”, the non-State actor as a whole was under the overall control of the State, then the activity of the private actor was imputable.[21] Like the complete dependence standard, overall control, if satisfied, would attribute the entire private conduct to the State.

Marko Milanović writes that the two general tests differ in the degree of control which they require for attribution.[22] The overall test deemed organising, planning and coordinating, as well as financing, training and equipping sufficient for attribution.[23] The ICTY indicated that: attribution would be satisfied where the de facto organ had autonomous choice as to the means and tactics, so long as they were sharing a common strategy with their dominating State. This contrasts with Nicaragua’s test of complete dependence, which requires the de facto organ to have no real autonomy resulting in a formalistic and “marionette and puppeteer relationship”.[24]

The ICJ considered the differing interpretations of Article 8 in the Genocide case. The court rejected the overall control test formulated in Tadić indicating that it: “stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organ and its international responsibility”.[25] The ICJ held that Article 8 must be “understood in the light of the Courts jurisprudence on the subject, particularly [the Nicaragua decision]”, rendering the complete dependence test, or failing that effective control, the appropriate threshold of attribution.[26]

2.3       A Working Standard of Attribution for the Contemporary Terrorist Threat?

Nicaragua provided two standards of attribution: complete dependence and effective control. The test of complete dependence is obsolete in tackling the contemporary terrorist threat posed by private actors. It requires the non-State actor to have virtually no autonomy. Attempting to prove such a relationship given the surreptitious nature that surrounds terrorism would be practically impossible. 

The effective control test could provide a better mechanism for imputing the private acts of terrorism to a State; however, the threshold is arguably unsuitable.[27] Slaughter and Burke-White state: “The traditional  'effective  control'  test for attributing  an  act to  a  state seems  insufficient  to address the  threats  posed  by  global  criminals  and  the  states  that  harbor  them”.[28] The greatest concern surrounding the contemporary terrorism is its increasing ability to act independently. Private actors no longer require State operation and direction: instead, they operate outside State control.[29] State support of contemporary terrorists no longer consists of substantial involvement, but by more acute methods: ideological direction, sanctuary, and logical assistance such as passports.[30] David Byman writes:

“At times the greatest contribution a State can make to a terrorist’s cause is simply not to act against it. A border not policed, a blind eye turned to fundraising, or even the toleration of recruitment all help terrorists build organizations, conduct operations, and survive”[31]

The effective control test requires the issuance of instructions or directions by a State relating to each terrorist operation in order to impute that specific conduct. The subtle means of State support described above can hardly be said to satisfy this requirement.[32] This illustrates the inadequacy of the effective control test – the threshold is set too high.

A contextual justification for this high threshold of attribution may be the timing of the judgment – when tensions were brewing between the US and USSR during an intense phase of the Cold war. The fear of catastrophic consequences means that the ICJ’s hesitance to attribute and set a lower threshold of attribution is more understandable. Gregory Travalio states: “to hold that the US and USSR had engaged in [attributable] attacks whenever the groups that they supported did so would have obviously created a more dangerous world”.[33] Michael Schmitt reflects: “The result was the creation of a legal fiction that States that were clearly party to a conflict…weren’t”.[34] This indicates that the effective control test made imputing the conduct of private actors to State organs difficult, in an attempt to avoid escalating the Cold War. Also, arguably the ICJ have fashioned the effective control test in accordance with contemporary threats, issues and circumstances. It would not be inconceivable for the ICJ to reanalyse this test to suit the threat posed by private terrorism, through a lower threshold of attribution.

Travalio and John Altenberg argue that Nicaragua is “far from factually analogous to States harbouring transnational terrorists and actively assisting terrorist groups” and should not be considered the controlling authority in the fight against non-State terrorism.[35] While factual discrepancies exist, effective control remains the most appropriate mechanism to determine State responsibility regarding private terrorism. This is supported by the ICJ, who confirm that Article 8 is not confined by fact, but aims to resolve “the question of establishing the criteria for the legal imputability”.[36]

A more nuanced argument purported by PM Dupuy suggests that there is ambiguity within Article 8 and the subsequent case law, which allows a flexible interpretation.[37] These arguments have some judicial support: the case of Bayindir suggested that the level of control required for attribution under Article 8 may differ depending on the factual context such as armed intervention or international criminal responsibility.[38] Most notably, Special Rapporteur James Crawford indicated that the variants of control under Article 8 were required in differing legal contexts. The ILC Commentary concedes that the application of "direction or control" will be complicated, indicating that a determination of imputability is fact-dependent.[39] Despite the support for varying the effective control standard of attribution to suit differing factual circumstances, it appears unlikely to materialise. The ICJ, the most authoritative international court, indicated: “the rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act”.[40] However, Crawford suggests that “where international law is not responsive enough to problems in the private sector, the answer lies in further development of primary rules”.[41] No such development of primary rules has emerged and any prospective rules would still have to answer difficult problems.[42] As a result, it appears that Article 8 and the effective control test represent a fixed standard of attribution, which, because of the need for direction and control by a State over private actors, is unworkable in the context of contemporary terrorism.

2.4       Tadić as an approach?

The lower standard of overall control set out by Tadić may serve as a better mechanism for imputing private terrorist conduct to a State. Milanović warns of the false foundations on which the overall control test was founded.[43] Despite this, Kimberley Trapp asserts that overall control responds to the “particularities of terrorism in a way that the rigid adherence to the Nicaragua standard does not”.[44]

The ICTY: “fail[ed] to see why in each and every circumstance international law should require a high threshold for the test of control”.[45] The need for flexibility in applying Article 8 has been supported recently in academic literature.[46] The “undoubted exceptionally high evidentiary threshold” necessary for effective control is increasingly impractical as “a transparent relationship between terrorist actors and the state is predictably uncommon”.[47] The overall control test represents a lower standard of attribution, it imputes direct responsibility on the more subtle forms of State support accustom to private terrorism.[48] This exemplifies the test of overall control as a more practical and, according to Antonio Cassese, “particularly efficacious” in tackling the contemporary terrorist threat.[49]

The overall control test only serves as a standard of attribution for organised, usually military, groups. For individuals and unorganised groups it invokes the effective control test devised in Nicaragua. Bruce Hoffman argues: “The traditional way of understanding terrorism and looking at terrorists based on organizational definitions and attributes in some cases is no longer relevant”.[50]  Increasingly, individuals can engage in violence unmediated by States and without formal ties with terrorist organisations.[51]  The methods used by private terrorist groups are becoming less connected and more unpredictable. Thus the jurisdiction of the overall control test –covering hierarchical, military groups – is becoming ineffective in tackling contemporary terrorism. Secondly, overall control permits assistance and training, exposing its inconsistency with State practice (particularly 9/11), which challenges its credibility.

2.5       The Genocide Rejection

In affirming the effective control test, the ICJ, in the Genocide case, stated that there need not be a relationship of complete dependence on State, just that the private actors “acted in accordance with the State’s instructions or under its effective control… in respect of each operation in which the alleged violations occurred”.[52] The ICJ condemned the ICTY for imposing an overall control test that: “stretche[d] too far, almost beyond breaking point, the connection which must exist between the conduct of a State’s organ and its international responsibility”.[53] Unfortunately, the court gave no indication as to why this should be so.[54] Nikolas Rajkovic supports the ICJ’s decision suggesting that the overall control test would be "malleable… to extra-legal agendas" and would open the door to “politicized jurisprudence".[55]  He argues the ICJ’s adherence to Nicaragua sent "a forceful message… that international courts should not be used to advance extra-legal agendas”.[56] However, as aforementioned, Nicaragua was decided during the Cold War and it is argued that the ICJ tailored its standard of attribution to sit comfortably with the extra-legal climate.[57] Therefore, to suggest that the ICJ’s adherence to Nicaragua serves as a statement against extra-legal agendas is contradictory. Additionally, to purport that Nicaragua protects from “politicized jurisprudence” by the ICJ is difficult to defend. Alexander Bickel writes that the courts have to utilise passive virtues to avoid judicial decision-making, when prudent, to preserve its legitimacy as a non-elected institution.[58] After the ICJ found the US guilty of breaching international violations in Nicaragua, the US withdrew its declaration of the ICJ’s jurisdiction, demonstrating the politicised interests that the court has to compete with to preserve its existence. Whilst international law should confine extra-legal agendas and politicised judgments as far as possible, these criticisms are misdirected as grounds for the reasoning of the ICJ in Genocide.

As established, the ICJ in Nicaragua sought to restrict the US to the responsibility of its own actions.[59] Trapp claims that this was, in part, driven by the facts; the ICJ formulated the effective control test as a means of circumventing attribution for non-inherent features of the operation, namely humanitarian abuses.[60] Understandably, imputing direct responsibility for non-inherent and unforeseeable events would be unjust on States. However, this standard of non-attribution is central to effective control and is unhelpful to the threat of private terrorism. Unlike Nicaragua, the concept of providing military, financial and logistical support to private actors for the pursuit of terrorist aims should not require shielding of responsibility. It cannot be said that the terrorist atrocities that result from the support provided by a State to a private terrorist actor represent a non-inherent feature and should exculpate the State from direct responsibility. This is a further reason why effective control is poorly placed to tackle contemporary terrorism.

However, where the issue of non-inherent conduct becoming imputable to a State does not exist; the court arguably may be willing to lower the standard of attribution. For example, the Corfu Channel Case concerned the damage to British ships patrolling the Channel.[61] Here, there were no issues of non-inherent conduct. Albania was held directly responsible despite having no knowledge of the mines being laid. In the words of the ICJ: “nothing was attempted by the Albanian authorities to prevent the disaster” and these “grave omissions” were sufficient to impute responsibility to the State.[62] The court imputed direct responsibility to the host State and held Albania responsible for the damage and deaths that resulted from that failure.[63] It demonstrates the ICJ imputing actions of a non-State actor, without the State reliance imposed by the effective control test, making judgment well-suited to contemporary terrorism. However, it remains an anomaly in international jurisprudence and, as a result, its weight is questionable.

2.6       Obstacles to a Workable Threshold of Attribution

Article 8 and the subsequent case law represent an unsuitable standard of attribution for private terrorism. However, as Crawford notes, the ILC Draft Articles are "rigorously general in character”, “encompassing all types of international obligations” and were not drafted with terrorism in mind.[64] It is increasingly apparent that the terrorist threat poses a problem deep-rooted in international law and more complex than the standard of attribution presented by Article 8. As Becker highlights: “contemporary private terrorism constitutes a new kind of threat. It demands new kinds of thinking”.[65] This dissertation will demonstrate that the underlying philosophy behind the ILC Draft, as a whole, is inappropriate for tackling the difficulties of private terrorist actors.

2.6.1    Universal Applicability

Crawford notes that the ILC Draft has universal applicability in theory and practice across the field of international obligations.[66] Luigi Condorelli highlights that the principles of attribution should be presumed to apply to every field of international law.[67] This “trans-substantive” nature implies that the ILC Draft is the appropriate legal instrument to attribute private acts of terrorism to a State.[68]

However, the contemporary terrorist threat exposes the unsuitability of universally applying the ILC Draft. The issues concerned in the ILC Draft – injury to aliens, environmental damage and human rights abuses – have been resolved by the remedies compensation and non-forcible measures provided. In contrast, private terrorist actions threaten catastrophic consequences and may require more serious remedies than those set out in the ILC Draft.

Today, the terrorist threat can endanger human life on a scale inconceivable to the early rapporteurs of the ILC Draft, and transcends the provision of compensation and non-forcible measures. For example, the paying of compensation to the US would be an insufficient remedy to the attacks of 9/11. Should a non-conventional attack occur, it is likely that the victim State would launch a forcible response. Admittedly, these examples represent the gravest acts of terrorism; however, they demonstrate times when non-forcible measures are no longer sufficient. They exemplify the fact that contemporary terrorism is a unique and unprecedented threat, posing danger on a totally different scale to that which has preoccupied international lawyers and been utilised by non-State actors in bygone eras.[69]

2.6.2    The Public-Private Sphere

A well-established feature of the ILC Draft Articles is that they serve as a regulation of public, or State, obligations, not those of private actions. Gordon Christenson comments: “from Grotius to Ago and the work of the ILC, the central theme of separating private from public acts by international law has been unquestioned”.[70] Robert Ago, fourth Special Rapporteur, emphasised that a private individual cannot violate international obligations, refuting the concept as inconceivable.[71] Like the concept of universal application, this is founded on a traditional view that we operate in a world where the power is State-centric, and that private action is contingent on a willing State. As established, the contemporary terrorist threat sits uncomfortably with this formulation, and consequently exposes the forgivable ignorance behind what Christine Chinkin has brandished an idyllic distinction.[72]

The segregation of the public and private spheres embodied in the ILC Draft has undoubtedly contributed to the high and invariable standard found in Article 8. Furthermore, as Chapter Three discusses, the distinction has had significant consequences for a victim State in launching a forcible response against States from which a private terrorist attack has emanated. In an international environment, where the need for State reliance has all but diminished, it could be argued Article 8 shields a controlling State from direct responsibility, even when its wrongful conduct was a significant cause of the private harm.[73]

Ago’s view that individuals cannot violate international law has become untenable given the emergence of individual criminal responsibility under international law. Nevertheless, commentators have relied on International Criminal Law to preserve the public-private distinction, suggesting that private terrorism should be viewed as an international crime. Whilst this argument does not concern attribution, it provides a credible alternative method for tackling the contemporary terrorist threat outside the remit of State responsibility.

While this paper does not explore the intricacies of combatting terrorism by criminalising it under international law, it does put forward an argument as to why State responsibility provides a better alternative. As the 9/11 Commission indicated: “the problem is that Al-Qaeda represents an ideological movement, not a finite group of people, it initiates and inspires even if it no longer directs”.[74] The cellular and clandestine nature of private contemporary terrorism makes it inappropriate to affix criminal responsibility to individuals. As described by one source: “going after bin Laden to stop terror is like going after the Colonel to attack KFC”.[75] This highlights the deep-rooted nature that contemporary terrorism has within the culture and mentality of society and not individuals. Ruth Wedgwood writes: “the lesson of September 11 is that control of catastrophic terrorism may require measures beyond criminal law... and a new standard of State responsibility for controlling private activity within national territory”.[76] 9/11 indicates that contemporary terrorism has the ability to constitute attacks of a magnitude sufficient to engage States in warfare. Thus the remedies provided by International Criminal Law regarding catastrophic acts of terrorism are not of sufficient gravity, requiring resolve to be found in State responsibility. 

Furthermore, the international community has seemingly endorsed contemporary terrorism as an issue of international security to be tackled by States, rather than individual criminal responsibility. The increase in counter-terrorism measures imposed upon States recently suggests that the emphasis is upon States to deal with the threat of terrorism. Becker notes: “Citizens have bequeathed their personal security to the State and, in return, the State is expected to exercise its prerogatives to their benefit”.[77] The High-Level Panel has expressed that “States are still the frontline responders to today’s threats”, showing that the contemporary terrorist “as a threat to international peace and security” is an issue of State responsibility, not International Criminal Law.[78]

2.6.3    The Non-Attribution Principle

The third issue with the ILC Draft concerns the non-attribution principle formulated by Ago, advocating that the conduct of a private actor not acting on behalf of the State shall not be considered as an act of the State under international law.[79] This was removed as it was unnecessary because the ILC Draft encapsulated this principle.[80] Crawford acknowledges that the Articles have a limitative function, which David Caron suggests results in reducing State responsibility to less than the natural and proximate consequences of a States action, even if the subsequent event was foreseeable.[81] This narrow construction of a State’s responsibility is concerning; it only invokes responsibility for the State’s actions, regardless of how that conduct may have contributed to the later results.

The concept of non-attribution is also evidenced in the current counter-terrorist obligations. Whilst these have acquired greater severity since the 9/11 attacks –imposing universally binding obligations on States – failure to satisfy these obligations will render the State concerned responsible for its own breach, not the resulting terrorist conduct. This concept of indirect responsibility seems sensible. However, it requires States to prevent or refrain from: “providing a safe haven, assistance, finance of terrorists”.[82] It appears less prudent and increasingly illogical that the current law will find a State that knowingly provides assistance for terrorist activities, responsible for erring in its obligations, not for the resulting events facilitated by its failures. Becker supports this interpretation: “Limiting the State’s responsibility to a failure to prevent or abstain in cases where its breaches have been essential to the terrorists’ success seems to unfairly absolve the State of its full measure of responsibility”.[83]

The ILC Draft appears ill-equipped to deal with the contemporary terrorist threat. Historically, States have enjoyed unrivalled dominance over private actors; they were bestowed with the most power but, equally, presented the biggest threat to each other. It was this traditional understanding that occupied the ILC Draft. They confined a State’s responsibility to its own acts; few wanted private action to justify State-to-State conflict particularly in the Cold War period. Today, private terrorist actors are immersed in ideological fervour, and empowered by technology; they can cross boundaries and wreak devastation without direct State assistance.[84] Whilst the power of non-State actors has increased, States are not impotent. Private terrorism ceases upon State inefficiency. However, State failures possess a far graver potential than in previous decades. Contemporary terrorism is a central fear to global security. Consequently, States can no longer be excused from their full measure of responsibility for the private conduct that their wrongdoing enables. It has allowed private terrorists to operate outside State control and offer no fixed global address toward the principles of legal accountability.[85]

Lowering the threshold of attribution would become more burdensome to States; however, this is justified. The consequences of State failures have taken on heightened significance given the power now possessed by private actors. Therefore, States should have increased due diligence given the potential destruction that could result from such a failure. States have a duty to safeguard the peace and security against the wrong and reprehensible that exists in the world.[86] With such a duty comes a responsibility States must bear at all costs.

Derek Jinks suggests that a “relaxation of the traditional attribution regime” would encourage armed-conflict resolutions to terrorist incidents because it would impute direct responsibility of private action to a States more readily.[87] It should be remembered that attributing direct responsibility to a State does not provide an automatic right of self-defence. Becker indicates that military measures against States bearing direct responsibility are still subject to the conditions that attend primary rules including self-defence. While State-to-State confrontation remains an ever-present threat to the international community, the concession has to be made that private terrorism is a rivalling concern to international security. The current regime of State responsibility has looked to minimise State conflict by making it difficult to attribute private conduct. However, the emergence of non-State terrorism requires a rebalancing of the rules to give rise to these competing interests. The present-day attribution regime allows States to pursue clandestine aims without incurring direct responsibility. It is rooted in an age where State-to-State conflict was an unrivalled concern, but, as 9/11 cruelly attests, this is no longer the case. [88]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Three: The Right of Response

The UN Secretary-General, in reference to contemporary terrorism, has indicated: “even one such attack and the chain of events it might set off could change our world forever”.[89] The prospect of non-conventional weapons in the hands of terrorists, casualties in the hundreds of thousands and cities obliterated indicate that private actors possess power of catastrophic proportions.[90] The Secretary-General suggests that the role of States is:

“To guarantee the rights of their citizens, to protect them from crime violence and aggression, and to provide the framework of freedom under law in which individuals can prosper and society develop”.[91]

Travalio and Altenburg indicate that because an attack against terrorists violates the territorial integrity of the host State, the ‘armed attack’ of the terrorists must be attributable to that State otherwise force cannot be used against the State or the terrorists in that State.[92] The idea of attribution under effective control is crucial in legitimising a forcible response.[93] This presents a problem. Whilst States are the frontline respondents to combat private terrorism, it remains perplexing that international law has invoked, and continues to invoke, a standard of attribution that prevents a forcible response by the State. The high threshold of attribution appears increasingly impractical.

3.1       Article 51 UN Charter

The rules surrounding the right to self-defence are contained in Article 51 of the UN Charter. They prescribe that there is an “inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations”.[94] There has been academic debate surrounding the interpretation of an armed attack. 

The first understanding relies on the need for direct responsibility, requiring that the private terrorist conduct be attributable to the host State in order to afford the victim the right of self-defence. The strictest interpretation is that an armed attack can only be performed by one State against another, indicating that no form of private actions warrant self-defence. This narrow interpretation had support prior to 9/11. In the West Bank case, the ICJ indicated that the right to self-defence under Article 51 can only be satisfied if the State, specifically one State against another, can be considered the author of the attack.[95] Dupuy stated that self-defence: “only permits armed reaction to foreign aggression coming from a State, not a nebulous transnational movement”.[96]

After 9/11, the majority of academic commentary broadened this reading of armed attack to include non-State actors but this interpretation is largely superficial. Whilst it recognises forcible responses to non-State actors, it is confined to instances where the private actors are at sea or the victim receives consent from the host State. The rules governing the  use of force  will still prevent anti-terrorism  military  campaigns  when  targets  are  located  in  the territory of  uncooperative  states, unless the terrorist act is considered attributable to the host State.[97]

As established, the accepted threshold of attribution found in Nicaragua and Genocide sets the bar unrealistically high. The broader interpretation that recognises non-State actors as having the capacity to perform armed attacks is rendered worthless by reliance on the requirement of attribution. It would be unlikely for a State that has harboured terrorists (insufficient to establish attribution) to voluntarily open its borders to a forcible response by another State. Consequently, the attribution test, established by the ICJ case law, impedes a State’s ability to function as the frontline responder to the contemporary terrorist threat.

The second interpretation of an armed attack does not concern an attribution-based test. It is interested in the gravity of the attack in question. For this reason, it will not be explored in depth. This interpretation has received far greater support in light of 9/11. Essentially, it looks at the size and severity of the act in question to determine whether it is an armed attack. If the armed attack requirement is satisfied, the victim State can forcibly respond regardless of whether the non-State attacks were attributable. However, the victim State has to limit their response to the terrorist targets.[98] Wedgewood has asserted:

“if a host country permits the use of its territory as a staging area for terrorist attacks when it could shut those operations down, and refuses to take responsible action, the host government cannot expect to insulate those facilities against the proportionate measures of self-defence”.[99] 

This interpretation is not useful in exploring the extent that private terrorist actions can be imputed to a State. However, it demonstrates the emergence of a new, progressive test that has dispensed with the ideals of attribution as a result of their ineffectiveness. Its existence strongly supports the proposition that the ICJ’s attribution test is inconsistent with State practice, at least regarding terrorism, if not State responsibility as a whole.

3.2       State Practice: Preceding 9/11

State practice prior to 9/11 supports the assertion that a forcible response cannot be made by the victim, unless the private terrorist attack can be imputed to the host State. The Portugal-Zambia, Senegal (1969) and South Africa-Angola (1981) conflicts both concerned a forcible response to irregulars fighting out of foreign territories. In both instances, the attacks were widely condemned by UN Member States and the Security Council.[100] Christine Gray writes: “if there is no State involvement in the actions of irregular forces there can be no self-defence against the State”.[101] Moreover, the international community rejects the view that a host State can incur direct responsibility simply because of terrorists operating from their territory.[102] The ICTY in Tadić relied on these conflicts as evidence that financial and military support to a private armed group could create direct responsibility.[103] The view that a victim State cannot invoke self-defence in response to attacks by a non-State has been followed in subsequent State practice; this continually saw the rejection of a doctrine of a lower form of attribution for private terrorists in permitting a forcible response.[104] The Security Council has continually required a relationship of attribution imputing private actions to the host State in order to legitimise a forcible response by the victim.[105]

The attacks by Al-Qaeda directed at US Embassies in Eastern Africa (1998), which killed two hundred people and injured nearly five thousand, stirred a different reaction.[106] Whilst the forcible response launched by the US was not without condemnation, it received unprecedented support for the time. The Security Council indicated that the perpetrators should be “swiftly brought to justice”.[107] However, it limited its response to:

"every State has  the duty to  refrain from organizing,  instigating, assisting or participating  in  terrorist  acts  in  another State  or acquiescing  in organized  activities within its territories  directed  towards the  commission  of such acts".[108]

The Security Council’s evasive approach in failing to provide the contemporary standards for engaging in a forcible response directed at a private actor within another territory was unhelpful. However, its response cannot be ignored given the contrast with preceding State practice. Furthermore, there was very little attempt by the US or the Security Council to require or to justify the attacks launched as attributable. Such a major omission certainly questions the validity of attribution in relation to private terrorism. 

3.3       9/11: Exemplification of the Inadequacy of State Responsibility

On 11 September 2001, the US was subject to a terrorist attack of unprecedented proportions. Two hijacked planes crashed into the World Trade Centre and one into the Pentagon. A fourth plane crashed in a field after a power struggle by passengers. The attack caused a total death toll of nearly three thousand.[109] President Bush proclaimed the US would make “no distinction between the terrorists who committed the attacks and those who harbor them”.[110] After it emerged that the Taliban would be uncooperative in apprehending the terrorists, Operation Enduring Freedom was launched. It authorised military attacks directed at Al-Qaeda, the private terrorist group, and the Taliban, the governing regime in Afghanistan seen as harbouring the private actors.

These operations received overwhelming international support.[111] The European Council voiced: “actions must be targeted and may be directed against States abetting, supporting and harbouring terrorists”.[112] The Security Council supported the “international effort to root out terrorism”, but, as Carsten Stahn notes, did not explicitly say the attacks could be attributable to the Taliban. This is the second example of the Security Council avoiding the attribution issue in circumstances of contemporary terrorism. Compounded by Security Council’s knowledge that the US were planning to pursue the Taliban, as well as Al-Qaeda, this continuing evasive trend is becoming detrimental to its validity.[113] Furthermore, the right of self-defence is invoked if a State becomes the victim of an armed attack; however, the Security Council categorised the 9/11 atrocities as “terrorist attacks”.[114] This textual ambiguity suggests that the Security Council was unsure how best to classify the September 11 attacks, but nevertheless held the view that they came within the ambit of Article 51.[115] The coy response of the Security Council supports the idea that contemporary terrorism sits uncomfortably with existing international legal principles. Historically, State practice has demanded that an armed attack initiated by a private actor could only invoke the right of self-defence if it was attributable to the host State. Michael Byers aptly highlights that 9/11 “created something of a legal dilemma” whereby the Security Council could not fathom an approach that both procured justice and was reconcilable with existing international law.[116]

3.4       The Legality of Operation Enduring Freedom

The majority of State practice for invoking a forcible measure of self-defence dictates that the victim be subject to an armed attack.[117] For the actions of a private actor, including terrorists, to form an armed attack, it must be attributable to the State. The standard of attribution set out in Article 8 and Nicaragua requires that there be a relationship of effective control between the non-State actor and the controlling state. The exceptionally high evidentiary threshold makes it difficult to utilise in the context of terrorism. If this standard of attribution can be proved, then for the purposes of international law, Operation Enduring Freedom can be considered legal.

It appears there is little legal coherence for justifying Operation Enduring Freedom under Article 8 of the ILC Draft Articles. Some commentators have used alternative articles to justify the operation, with little success.[118] Academics that have defended the legality of Operation Enduring Freedom were commonly writing in the wake of the attacks, which understandably evoked raw emotion, with the consequence of rendering their findings illusory and artificial.[119] Mary O’Connell expressed: “Afghanistan’s de facto government developed such close links to the known terrorist organisation Al-Qaeda that it became responsible for the acts of Al-Qaeda”.[120] Slaughter and Burke-White suggested that the Taliban and Al-Qaeda were “so intertwined they were effectively indistinguishable” and could thus both be regarded as legitimate targets.[121] However, this view is largely untenable; the 9/11 Commission Report questioned the degree of control exercised by the Taliban over Al-Qaeda, finding that senior officials in the Taliban regime were opposed to the attacks.[122]

3.5       The Illegality of Operation Enduring Freedom

The US, while accusing the Taliban of acquiescence, stopped short of alleging that the Taliban was directly responsible for the attacks of 9/11.[123] As noted, the Security Council was unresponsive on the issue of attribution and direct responsibility. Thomas Franck argues that the failure to condemn reflects international acceptance of a particular operation.[124] Historically, State practice and ICJ jurisprudence has established that attribution requires State direction and control, not mere acquiescence, over the operation in question to impute direct responsibility. It is, then, confusing how Operation Enduring Freedom is justified in accordance with the mechanisms of international law.

The international support received by the military response renders the standard of attribution, devised in the Draft and Nicaragua, “highly problematic”.[125] Jordan Paust argues that assisting private terrorist groups, much less harbouring, tolerating or acquiescing – notably the accusation levied at the Taliban by the US in its justification of Operation Enduring Freedom – will not raise State responsibility to the class of an armed attack.[126] The discrepancy between State practice and international law highlighted by Paust has been emphasised by the academic community in recent years.[127] However, as Becker rightly asserts: “in light of the overwhelming support for Operation Enduring Freedom, it is surely more plausible to argue that the failure to apply the agency standard casts doubt not on the legality of the operation, but on the relevance of the standard”.[128]

3.6       The Aftermath of State Responsibility in the Wake of Operation Enduring Freedom

Jinks writes that the overwhelming support of Operation Enduring Freedom  suggests  that  the  international legal  response  to  the  terror  attacks of 9/11 signalled  a  subtle  but important  shift in the law of state responsibility.[129] It is irrefutable that 9/11 represents a shift in State practice, and contributes to the understanding and mentality surrounding the contemporary terrorist threat. It can be contested, however, that Operation Enduring Freedom signifies a shift in the law on State responsibility. If anything, it illustrates the inadequacy and unresponsive nature of the current international law on contemporary terrorism. A decade on from 9/11, it is starkly apparent that whilst State practice, mentalities and understandings have shifted, the law on State responsibility has remained unchanged.

The standard of attribution in light of the justification of Operation Enduring Freedom is ambiguous. There has been no formal change in the standard of attribution through a legal instrument.  Academically, it is difficult to conflate the facts and understandings surrounding Operation Enduring Freedom into a legally coherent rule. Travalio and Altenburg state that Nicaragua and the ILC Draft “no longer represent[s] the customary and accepted practices of States in the context of transnational terrorism”.[130] Even if the Taliban had provided Al Qaeda with airline tickets, funds for flight lessons or anthrax spores in order to launch a biological attack, this would still be insufficient under Nicaragua to impute direct responsibility to the State.[131] This view is untenable in light of 9/11, which confirms Travalio and Altenburg’s assertion that Nicaragua and the ILC Draft Articles are incompatible with the contemporary terrorist threat.[132] 

The support for Operation Enduring Freedom suggests that the need for attribution regarding an armed attack has been significantly eroded. Trapp indicates that since 9/11, State practice dictates that self-defence can be invoked against an armed attack launched by a non-State actor, on the grounds that the defensive force is directed solely at terrorist targets.[133] However, Operation Enduring Freedom remains a bemusing example that enjoyed unprecedented support, yet failed to satisfy the legal criteria to target the Taliban. Marco Sassolí states: “it remains unclear as to whether the events of September 11 represent the development of a new and broadly applicable legal rule”.[134] 9/11 should be the catalyst for a new beginning on the governance of State responsibility regarding terrorism. Whilst, a decade further on, there is little evidence to suggest a new rule relating to State responsibility in combatting the terrorist threat, it would be naive to perceive 9/11 as an anomalous example. It may have been the first of its kind, but it is symbolic of the powers that can be exercised by private contemporary terrorists on the international scene. Raphael Perl states: “although conventional explosives appear to be the terrorism weapon of choice, the world is increasingly moving into an era in which terrorists may gain access to nuclear, chemical or biological weaponry”.[135] The inability of international law to articulate a response to the atrocities of 9/11 exemplifies its ongoing inadequacy. However the international community is still awaiting a new direction for State responsibility. If this fails to materialise, the current law on State responsibility will become ever more redundant.

 

 

 

 

Chapter Four: An Emerging New Rule for State Responsibility

The response by the US to the attacks of 9/11 represents a paradox in international law. It failed to satisfy the requirement established by international jurisprudence – that actions by a private actor must be attributable to a State in order to allow the possibility of a forcible response against that State – but despite this, it received overwhelming support. Jinks infers that the support received by Operation Enduring Freedom: “signaled a subtle, but important shift”.[136] Meanwhile, Becker remarks: “numerous scholars have felt compelled to acknowledge the shift towards a new rule of international law”.[137] Of course, a single support military intervention cannot be said to represent a new form of instantaneous custom.[138] However, there exists a contingency relationship between international law and State practice in order for it to be efficacious, and this particular instance of State practice highlights a major disparity within the current legal system. The concept of attribution plays an indispensible role in the international legal system; it is necessary for imputing direct responsibility, which consequently may permit the victim to forcible respond toward the State from which terrorist activities emanated. This chapter explores theories of attribution, past and present, in the attempt to find a credible explanation for 9/11, and future private terrorist actions of a similar nature.

4.1       In Search of an Attribution Requirement for 9/11: Returning to Historical Theories

4.1.1    Collective Responsibility

Absolute Responsibility revives a form of collective responsibility present in the Middle Ages.[139] It dictated that a group was automatically responsible for its members. This theory is unpopular. Manuel Garcia-Mora advocates that: the general obligation on States to protect each other’s independence and well-being ought to be a sufficient basis for responsibility for any hostile emanating from their territory.[140] Today, this theory is difficult to maintain. It attributes the actions of private individuals to States, regardless of any wrongdoing. To suggest that a State be automatically responsible for private action emanating from their territory would create an unmanageable burden for States to bear. For example, it would require a State to regulate every type of private action in order to shield itself from direct responsibility. This degree of State involvement in private affairs under the theory of State responsibility could border on almost totalitarianism and dictatorial. 

A nuanced theory of collective responsibility was devised by William Hall.[141] This theory of strict responsibility dictated: prima facie, a State would be responsible for the acts and omissions taking place within its territory, unless it could exonerate itself by showing an absence of wrongdoing.[142] This is more palatable than Absolute Responsibility, as in circumstances where a State has done nothing wrong they can escape liability. Furthermore, it appears to sit well with the current legal principles, particularly the counter-terrorist obligations that have been placed upon States in light of 9/11. For example, a State may be held responsible unless it can prove that it has conformed to their counter-terrorist obligations. However, this rebutting of responsibility could be open to abuse and exploitation. Between the point of an attack striking the victim State – establishing attribution – and the exoneration by the host State of wrongdoing, the former has a licence to respond in any way it feels fit. It would be time consuming to trawl through every counter-terrorist procedure and obligation to ensure a State has satisfied each one, making the exploitation of the “time gap” between attribution and exoneration perfectly possible. 

It has long been established that the element of fault does not feature in assessing State responsibility. The ILC Commentary indicates: “in the absence of any specific requirement of a mental element in terms of the primary obligation, it is only the act of a State that matters, independently of any intention”.[143] A State should be judged on acts contrary to international law known as “objective responsibility”, not on intentions or motives.[144] This is because the hierarchical and multi-faceted nature of States is incapable of forming mental and psychological components.[145] Strict responsibility’s connotations of proving some form of bad intent on the part of the State in question suggests that it is incompatible with “objective responsibility”,   rendering it a theory difficult to justify. 

There are additional reasons why collective responsibility theories cannot be viewed as an acceptable standard of attribution. Firstly, collective responsibility theories are too inflexible to combat contemporary terrorism. The absolute standards they impose give no consideration to the capabilities of the host State or whether they even have the capacity to prevent the terrorist attack that emanated from their territory. For example, Nepal and Cambodia are considered to be willing States in the fight against terrorism, but their lack of resources and weak institutions counteracts their good will. [146] Somalia, a State with no functioning government, has no ability to prevent acts of terrorism emanating for its territory.[147] Collective responsibility spares little though for States in such a predicament. Secondly, it gives no consideration to how far a State from which an act of terrorism emanates is responsible. There is no differentiation between an isolated breach of an obligation and an ongoing series of failures; both establish direct responsibility on the part of the State. For example, if the US could be said to have failed in its own counter-terrorist obligations regarding 9/11, then the US and Taliban could be viewed to be equally responsible.[148] This highlights the unsuitability of such an inflexible standard. 

It may appear tempting in the current terrorism climate to jump to extreme measures, but absolutist theories have significant consequences. As noted, they could have profound effects outside international law, potentially violating human rights in an attempt to shield the State from direct responsibility.[149] These policy considerations exemplify why this standard of attribution is undesirable; as Becker describes, “it is a case of the cure being worse than the disease”.[150]

4.1.3    The Theory of Complicity

Hugo Grotius first devised complicity in international law in the seventeenth century.[151] The theory indicated that a State would not be responsible for the wrongful actions of its subjects unless the State were ‘complicit’ through the notions of patientia or receptus.[152] These terms have been thought to mean failure in prevention and the ignorance by the host State toward the private actions (after the fact). This form of responsibility benefitted States because it imputed direct responsibility once ‘complicit’ wrongdoing had been established, unlike collective responsibility, which prescribed it to States automatically. This theory proved popular in the nineteenth and early-twentieth century.[153]

Interestingly, the theory attracted criticism in the early-twentieth century as State relations increased, because it failed to respect the spheres of public and private conduct.[154] Holding a State ‘complicit’ with a private actor for wrongful conduct inferred that a sovereign State was capable of acting jointly in its commission. The theory was seen as unsustainable as it created a fictitious implication that States were involved with the wrongful conduct, when, in reality, they were not.[155] Furthermore, it was criticised because it inferred notions of criminality and intent of the wrongdoing, when it has been long established that States, multi-faceted bodies, are incapable of possessing such an attribute.[156] Ago suggested: “complicity between the individual and the State for the purpose of such a violation is inconceivable”.[157]

Recently, the complicity theory has crept back into academic literature as a purported regime of State responsibility regarding terrorism.[158] Sompong Sucharitkul wrote that a State that failed in its duty to prevent or abstain from terrorism should be held responsible for the resulting acts.[159] Regarding 9/11, Schmitt argues that the support for Operation Enduring Freedom represents a new approach, one equivalent to criminal complicity.[160] Wolfrum and Phillip attempt to reconcile ‘complicity’ with the Article 16 of the ILC Draft, which involves the assistance by one State to another State for the commission of an internationally wrongful act.[161] Drawing analogies between Article 16 and the relationship between the Taliban and Al-Qaeda, the fact that the latter was a non-State actor is glossed over. Furthermore, they suggest: “…action of a non-state actor is attributable to that subject of international law if that subject deliberately created a situation which was a necessary precondition for a later event”.[162] This is problematic as Article 16 is not an article of attribution. Instead, it is contained in the chapter, “Responsibility of a State in connection with an act of another State”, indicating that the status of Al-Qaeda, as a non-State actor, severely compromises the validity of this theory.[163] This was confirmed in Genocide where the ICJ indicated that State responsibility for the complicity of genocide, an ancillary offence, was clearly distinguishable from a standard of attribution.[164] More importantly, Wolfrum and Phillip’s analogy shows minimal consideration of the foundations upon which attribution of private conduct to a State is built. It represents a divergence from the non-attribution principle underpinning the ILC Draft as a whole. Imputing direct responsibility in cases of mere assistance is difficult to justify given the international jurisprudence surrounding the standard of attribution, a connection the authors fail to explain.

The majority of contemporary literature has not considered complicity as a form of responsibility given its rejection in the early-twentieth century. Earlier works, which defended the complicity theory, appear to have striking relevance to combatting contemporary terrorism. The complicity theory failed to respect the public-private divide; however, literature surrounding contemporary terrorism appears to lament the segregation of the public-private domains.[165] In 1928, James Brierly stated: “we introduce no fiction if we regard the state’s omission as in some sense making it a party to the original act”.[166] There is some promise in the theory of complicity; it considers the States conduct in relation to the privately occasioned acts. It removes the public-private distinction, which, in the context of attributing private acts of terrorism, makes it attractive. While complicity’s connotations with intention and criminality, particularly given the emergence of International Criminal Law, provide the need for caution when approaching this theory, its earlier fall from grace should not be considered as conclusive by commentators as a theory for combatting terrorism.

4.2       In Search of an Attribution Requirement for 9/11: Establishing a New Standard

4.2.1    The “Harbouring” Doctrine

Following 9/11, President George Bush proclaimed that the US would make: “no distinction between the terrorists who committed the attacks and those who harbor them”.[167] Despite the politicised rhetoric, academics have latched on to these words to establish a new standard of attribution.[168] The doctrine dictates that harbouring terrorists is sufficient to impute direct responsibility to the State for private actions that arise. The motivation for this standard has emerged due to the disparity between the international support of Operation Enduring Freedom and the existing primary and secondary rules. Schmitt argues that a theory allowing targeting both private actors and States is the policy response to the contemporary terrorist threat.[169] Whilst the Cold War’s super-power confrontation has been laid to rest, today, contemporary terrorism is increasingly menacing. Schmitt relates the present-day terrorist climate to the Cold War climate, arguing that this should lower the bar of attribution.[170] A former supporter of the standard of attribution devised in Nicaragua, Albrecht Randelzohfer, in light of 9/11, has brandished the standard “much too sweeping”.[171] In his view, where a State has enabled, whether it be through encouragement, preparation or shelter, a private actor to commit acts of a military scale, the State contribution should surmount to attribution. Byers states:

“As a result of the legal strategies adopted by the US, coupled with the already contested character of the rule and heightened concern about terrorism world-wide, the right of self-defence now includes military responses against States which actively support or willingly harbour terrorist groups who have already attacked the responding State”[172]

Jinks has criticised the harbouring doctrine on two grounds. Firstly, the relaxation of the attribution principles creates a standard that “symbolically aggrandizes” terrorists as State sponsored belligerents, rather than the private criminals they are.[173] This has a degree of validity in that imputing direct responsibility can be achieved by means such as harbouring and toleration that, perhaps, do not accurately reflect the State contribution. However, Michael Glennon suggests: “acts of omission in such circumstance shade into acts of commission, and aggrieved states should not be faulted for treating them the same”.[174] While the conflation of commission and omission may be disputable, the sentiment that those States who, by the conduct of assisting and encouraging, flirt with private terrorist groups should not be painted as the victim remains valid. As Yoram Dinstein highlights: “It does not follow that Utopia must patiently endure painful blows, only because no sovereign State is to blame for the turn of events”.[175] The current standard of attribution is theoretically proving to be of major detriment to aggrieved States. Practically, Operation Enduring Freedom is an apt example of an attack being of such gravity that accepted legal practice and principles were displaced because they were not responsive enough. Jinks’ suggestion appears superficial and misdirected. At present there exists a standard of attribution regarding terrorism that is irreconcilable with State practice, particularly similar events to 9/11, and obtrusive to the victim State. A convincing argument is that a State that supports, assists, shelters or encourages a private terrorist group should bear direct responsibility for these acts, regardless as to whether it accurately reflects the intricate relationship between State and non-State actor. If the current standard of attribution requires States to endure devastating strikes from private actors, but provides a correct reflection of State of the State’s involvement with the non-State actor, then the law appears to have its priorities the wrong way around.

A second critique levied by Jinks is that the harbouring doctrine is problematic as, by lowering the standard of attribution, it increases the cost of regime change in rogue States.[176] States will be more hesitant to support opposition forces in fear of attracting direct responsibility. This may be valid. However, it assumes that opposition forces are acting lawfully and in pursuit of a desired outcome. Abraham Sofaer observes that the current standard of attribution has “the effect of reducing the costs imposed on States for supporting aggression and for assisting groups they know intend to engage in unlawful acts”.[177] Lowering the standard of attribution may affect the extent to which States support groups in pursuit of regime change; however, it would also prevent States using those groups to act unlawfully. The benefits of lowering the standard depend on the circumstance. However, a lower standard would be a more realistic reflection of the relationship between States and private actors.

Despite this, Jinks’ criticisms of the harbouring doctrine do raise questions about the exact contours of the theory. There are questions over whether there needs to be a breach of obligation by the host State, whether it applies to all acts of terrorism, or whether there needs to be knowledge on the part of the State of the terrorist actor’s existence. Furthermore, the theory needs to provide answers to complex issues concerning the accountability of failed States or where more than one State harbours a terrorist organisation. This has led to authors such as Travalio and Altenburg to label it ill-defined, too broad and open to abuse. This is a major flaw. The harbouring doctrine may serve as the best theoretical explanation of 9/11. As a credible long-term standard of attribution, it must provide sustainable answers to these questions. 

Franck defends the harbouring doctrine on the basis: “a State is responsible for the consequences of permitting its territory to be used to injure another State”, suggesting that this understanding is clear in the ILC draft.[178] However, the past case law, State practice and actual wording of the ILC Draft for attributing non-State conduct contradicts Franck’s argument. Other explanations rely on the use of force rules such as Article 3(g) of the Definition of Aggression, which requires a State be substantially involved in the attack. Barry Feinstein argues that Afghanistan agreed to harbour Al-Qaeda and Bin Laden, which suggests the Taliban were substantially involved.[179] This appears a tenuous connection. Furthermore, to say that a State that harbours a group can be said to automatically be substantially involved in their affairs is illogical. As Marcelo Kohen points out, “Enlarging the concept of aggression so as to include the harbouring of terrorists confuses internationally wrongful acts and opens the door to increased unilateral uses of force, and thus escalation”.[180] Becker indicates: “the primary difficulties stem from the fact that this ‘relaxed standard’ stretched the notions of attribution… beyond that which their existing conceptual frameworks can logically bear”.[181] The doctrine is far broader than the non-attribution principle that forms the basis of the ILC Draft Articles. If it cannot form part of the ILC Draft Articles it would presumably represent a lex specialis but this is not expressed.[182] Until questions concerning the extent to which a States involvement can satisfy attribution or warrant a forcible response can be answered, it cannot be considered seriously. Moreover, without such an articulation, the harbouring standard threatens to drastically broaden State responsibility and rules of use of force regarding terrorism and other non-State activity. Without this clarification, it appears to be a kneejerk reaction toward an isolated event rather than a respectable theory. Whilst a thorough articulation would be a step forward, the harbouring doctrine would still represent a problematic standard; Byers concludes: "even today, most States would not support a rule that opened them up to attack whenever terrorists were thought to operate within their territory”.[183]

4.2.2    A Varied Standard of Attribution

There have been many proponents of varying the threshold of attribution in the context of terrorism beyond such a strict interpretation of direction and control as contained in the ILC Draft Articles. Cassese proposed returning to a standard of overall control as set out in Tadić.[184] Travalio and Altenburg, in light of 9/11, have argued for direct responsibility to be imputed where evidence exists of “significant supply or logistical support”.[185] Similarly, Rainier Grote suggests attribution should not be limited to situations of effective or overall control but should include the provision of weapons, training, financing and logistical support.[186] This appears a preferable threshold of attribution. It goes further than the tests purported by the ICJ and ICTY to include financial and military support and therefore can be an adequate mechanism for combatting State support of contemporary private conduct. Furthermore, it suffers less from the ambiguous terms of direction and control incorporated in the effective and overall control tests. Instead, it specifically identifies conduct that will impute direct responsibility to a State – for example, the provision of weapons.

However, the purported standard is not without criticism. The Genocide case indicates that the ICJ is keen to uphold the effective control standard. Secondly, the theory stops short of imputing responsibility on the grounds of harbouring or tolerating. This is arguably a weakness because, as Schmitt indicates: “the key contribution made by the Taliban was granting Al Qaeda a relatively secure base of operations”.[187] If this opinion is accepted, then this is a major flaw in the theory. The standard of attribution is proclaimed to be a ‘new rule’ – a doctrine devised to be operable and workable in light of 9/11 – but it appears to fall at the first hurdle. Becker observes that Travalio and Altenburg implicitly suggest that the targeting of the Taliban is difficult to justify under their theory.[188] Therefore, in attempting to set out a credible standard to both explain 9/11 and serve as a mechanism to regulate future, similar-natured events, their theory loses credibility. However, the 9/11 Commission stated: “The alliance with the Taliban provided Al-Qaeda a sanctuary in which to train and indoctrinate fighters and terrorists, import weapons, forge ties with other jihad groups and leaders, and plot and staff terrorist schemes”.[189] These findings support Travalio and Altenberg’s theory, though whether these actions amounted to significant supply and logistical support is questionable.

4.2.3    Causal-based Responsibility

A theory put forward by Becker analyses State wrongdoing on a basis of causation, exploring how the failure of a counter-terrorist obligation may have caused the resulting act of terrorism. It is the most ambitious theory to date and Elizabeth Nielsen writes that it “substantially expands the State responsibility for terrorist groups.[190] Whilst Becker ambitiously aims for the reconceptualised theory on State responsibility to be a supplement for the ILC Draft Articles, it may be better positioned as a lex specialis. Direct responsibility is initiated by a State’s actions, such as a failure to comply with a counter-terrorist obligation. However, responsibility could extend beyond the State’s failure, if that breach is seen to have a caused the consequential private conduct.

Becker highlights that his theory applies a ‘common sense’ approach to causation: “The State’s omissive failure is the cause of the harm – it explains why the terrorist activity occurred. The fact that independent actors perpetrated the terrorist act itself is immaterial to this finding”.[191] Given the complexity and clandestine nature of contemporary private terrorism, it is right to attempt to separate the legal considerations from extra-legal issues. However, the clarity and existence of a causal link is questionable. It is difficult to imagine that an individual State’s failure in its duty can be considered a direct cause of the harm. The execution of an operation such as 9/11 would require years of planning, the positioning of ‘sleeper cells’ and access to a wealth of information; undoubtedly, the Taliban breached numerous obligations, yet the causal link between State and non-State actor becomes increasingly blurred. Furthermore, complex financial transactions held in off-shore accounts and shell companies and networks spanning across the globe means that it becomes increasingly insurmountable to ground a causal link in anything other than speculation.[192] Whilst Becker’s theory is commendable and a step in the right direction, it may be that causal-based attribution, will encounter problems when it comes to practical application, given the simplicity of the theory but the complexity of the issue. This is compounded further by the insurmountable jurisprudence that supports the non-attribution principle. Change in the law on State responsibility is needed, but such a radical change may prove too much for the international community to swallow in one dose.

4.3       Concluding Remarks

There appears to be disparity in academic literature, State practice and international law as to where the line of attribution lies in relation to acts of terrorism.[193] It is certainly possible to conclude that separating public-private spheres regarding contemporary terrorism is desirable. The world is no longer dominated exclusively by State power; the emergence of private terrorists is undeniable. Consequently, a State’s failure in its duty takes on greater significance because privates exploit their inaction. Thus the need for a system that acknowledges the significance of State failure in the context of resulting private action becomes obvious. This is why Becker’s theory of causation is attractive. States, as preventers of crime and violence, should be held responsible for actions they could have prevented. However, the current system fails to comprehend the significance of State regarding contemporary terrorism. It is preoccupied with aged conceptions of private action requiring non-State actors to have a reliance-relationship, which fails to appreciate independence now exerted by contemporary terrorists. The ILC Draft, therefore, portrays a measure of State responsibility, which is devoid of significance. International law, particularly concerning attribution, has faithfully backed ILC Draft Articles and the supplementing case law. It may be ostensible that any purported theory of attribution cannot be divorced from these principles. However, as Wolfgang Friedman, in an almost prophetic statement, asserts:

“there is nothing sacred about these established rules, especially if their basis, the separation of individual and State, has disappeared, and it is better to play havoc with them than maintain an old rule completely out of contact with political reality”.[194]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Five: Conclusion

11 September 2001 and the response to it marked a change in how the international law was perceived. It contrasted the out-dated standards with the cruel realities that existed in the private world. It showed the standard of attribution to be inadequate in combatting the unprecedented power of contemporary terrorists. It demonstrated that States – the frontline responders to threats, the protectors of citizens and the defenders against crime and violence – were no longer justified in limiting their responsibility, without direct accountability for the results. Authors have failed to provide a satisfactory explanation for the disparity between international law and the support for Operation Enduring Freedom. Some have looked to revive old theories of attribution, which pose problems of practical application. Others have denied the legitimacy of Operation Enduring Freedom, despite its overwhelming international support, which defies legal coherence. More ambitious commentators have tried to devise a new theories of attribution based on Operation Enduring Freedom and, whilst these are persuasive, they are painfully at odds with the existing jurisprudence. The legacy of 9/11 on the issue of attribution regarding private terrorism remains ever more confusing.

The international support of Operation Enduring Freedom has questioned the validity of secondary rules in international law, particularly the ILC Draft. The secondary rules have been shrouded in confusion, which has effectively left their relevance to contemporary terrorism in a state of purgatory. As a result, Vincent-Joil Proulx argues for a system of “two-tiered liability” that circumvents the need for attribution entirely, given its inadequacy in the face of events such as 9/11.[195] Meanwhile, Jinks suggests that “the revision of trans-substantive secondary rules is a clumsy, and typically ineffective, device for vindicating specific policy objectives”.[196] Arguably, the ineffectiveness of the standard of attribution in the ILC Draft has required the international community, faced with events such as 9/11, to look beyond the secondary rules in favour of specific primary rules. Bodansky and Crook support this assessment:

 "responsibility seems more likely to arise through the operation of primary rules, such as customary or conventional rules prohibiting aggressive uses of territory or harboring terrorists, and binding Security Council resolutions”.[197] 

The ILC Draft philosophy – the public/private distinction, the avoidance of State-to-State conflict, the non-attribution – have all been challenged by contemporary terrorism. This created a dilemma for the international community: either rewrite the history on which the ILC Draft were based or concede the ILC Draft were inadequate to the problems presented by private terrorism. It is evident the international community answered in the latter.

The increase in counter-terrorist obligations placed upon States in the wake of 9/11 provides a basis for State responsibility. The duties on States include: to abstain from toleration and harbouring terrorists along with the prevention of increased involvement. These obligations capture the understanding that minimal State action or inaction can considerably benefit active terrorist organisations. Paul Szasz comments:

 “if used prudently, this new tool will enhance the UN and benefit the world community, whose ability to create international law through traditional processes had lagged behind the urgent requirements of the new millennium”.[198]

The obligations appear to envelop the pressing concerns surrounding contemporary terrorism. The heightened severity they have taken on board in light of 9/11 indicates States need to bear greater responsibility for tackling private terrorism. The duties to abstain from harbouring and toleration marks an important shift from the substantial State involvement present in past jurisprudence. Although the counter-terrorist obligations only concern responsibility for a States own action, expanding these obligations into a broader regime State responsibility should be considered. It better reflects the reliance-relationship between State and non-State actor, recognising more subtle forms of State support. Furthermore, the counter-obligations were drafted specifically to target State involvement in private terrorism, unlike the ILC Draft. Articulated as a lex specialis, it would circumvent the problematic standard of attribution found in the ILC Draft.[199] Instead, with articulation, it could devise a standard of attribution specific and appropriate to terrorism, without unsettling the parameters of State responsibility more generally. The expansion of responsibility would add another dimension to counter-terrorism obligations, and, given their growth in the past decade, this is not an inconceivable consequence.


[1] Tal Becker, Terrorism and the State: Rethinking the Rules of State Responsibility (Hart Publishing, 2006) 130.

[2] Message of the Secretary of Defense, accompanying the Pentagon report ‘Proliferation: Threat and Response, 1997’, quoted in Simon Reeve, The New Jackals: Ramzi Yousef, Osama bin Laden and the Future of Terrorism (Northeastern University Press, 1999) 257.

[3] Becker (n 1) 253; Reeve (n 2)  259.

[4] The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (New York, NY, W. W. Norton, 2004) 16 (Executive Summary).

[5] Oliver Revell, Deputy Director of the Federal Bureau of Investigation, speaking in an author interview, quoted in Reeve (n 2) 259. Throughout the dissertation this problem will be referred to as the contemporary terrorist threat.

[7] Pamala L. Griset, Terrorism in Perspective (Sage Publication, 2002) 8.

[8] Andrea Gioia, "The UN Conventions on the Prevention and Suppression of International Terrorism" in Giuseppe Nesi, International Cooperation in Counter-terrorism: The United Nations And Regional Organizations in the Fight Against Terrorism (Ashgate Publications, 2006) 4.

[10] Andrew Byrnes, Apocalyptic Visions and the Law: The Legacy of September (Federation Press, 2002) 11.

[11] Kimberley Trapp, State Responsibility for International Terrorism (Oxford University Press, 2011) 37. The International Law Commission will be referred to as the ILC hereinafter. Additionally, the ILC Draft Articles may be referred to the ILC Draft hereinafter.

[12] Yearbook of the International Law Commission, Volume II, Session 28, United Nations Publication, UN Doc A/CN.4/SER.A (1975) 60.

[13] Article 8, The Responsibility of States for Internationally Wrongful Acts, 53rd Session, UN Doc A/56/49(Vol.I)/Corr.4 (2001).

[14] ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), judgment of 27 June [1986] [referred to in the main body of the dissertation as Nicaragua].

[15] ibid 106.

[16] ibid 109 – 110.

[17] Marko Milanović, ‘State Responsibility for Genocide’ (2006) 17 (3) European Journal of International Law 577.

[18] ibid 576 – 583.

[19] Ibid 575 – 578; Antonio Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 (4) European Journal of International Law 665 - 668. Additionally, the International Criminal Tribunal of Yugoslavia will be referred to as the ICTY hereinafter.

[20] Prosecutor v. Tadić, Appeals Chamber judgment (Case no. IT-94-1-A), para 120-124 [referred to in the main body of the dissertation as Tadić].

[21] ibid para 120; Milanović (n 17) 581.

[22] Milanović (n 17) 581

[23] ibid

[24] Becker (n 1) 258

[25]  Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)[2007] at para 404 [referred to in the main body of the dissertation as Genocide].

[26] Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [2007] at para 400.

[27] Milanović (n 17) 581; Anne-Marie  Slaughter  and  William  Burke-White,  ‘An  International Constitutional Moment’  (2002)  43(1)  Harvard  International  Law  Journal  20; David Caron, ‘The Basis of Responsibility: Attribution and Other Trans-substantive Rules’ in RB Lillich and DB Magraw, (eds), The Iran-United States Claims Tribunal : Its Contribution to State Responsibility (Irvington-on-Hudson, NY, Transnational Publishers, 1998); A Randelzohfer, ‘Article 51’ in B Simma, (ed), Charter of the United Nations: A Commentary (Oxford University Press, 2nd Edition, 2002) 881; Gordon Travalio and John Altenburg, ‘State Responsibility for Sponsorship of Terrorist and Insurgent Groups: Terrorism, State Responsibility and the Use of Military Force’ (2003)  Chicago Journal of International Law 97, 105; MJ Glannon, ‘The Fog of Law: Self-Defense, Inherence and Incoherence in Art 51 of the United Nations Charter’ (2002) 25 Harv J L & Pub Pol’y 539, 550 ; MN Schmitt, ‘Bellum Americanum Revisted: US Security Strategy and the Jus Ad Bellum’ (2003) 176 Mil L Rev 362, 399; G Guillame, ‘Terrorism and International Law’ (2004) 53 Intl & Comp L Q 537, 547; C Gray, International Law and the Use of Force (Oxford University Press, 2nd Edition, 2004) 171; Cassese (n 19) 666 – 667; Becker (n 1); Trapp (n 11) 31 – 45.

[28] Slaughter  and  Burke-White (n 27)  20.

[29] Becker (n 1) 252.

[30] David Byman, Deadly Connections: States that Sponsor Terrorism (Cambridge University Press, 2005) 54 – 64.

[31] ibid 219.

[32]Cassese (n 19) 666.

[33] Travalio and Altenburg (n 27) 105.

[34] Michael Schmitt, Counter-Terrorism and the Use of Force in International Law (Garmisch-Partenkirchen, George C Marshall European Centre for Security Studies, 2002) 33.

[35] Travalio and Altenburg (n 27) 105 - 106.

[36] Tadić (n 20) 104.

[37] PM Dupuy, ‘State Sponsors of Terrorism: Issues of International Responsibility’ in A Bianchi, (ed), Enforcing International Law Norms after Terrorism (Hart Publishing, 2004) 10.

[38] Bayindir v Pakistan (the International Centre for Settlement of Investment Disputes, 2009), para 130.

[39] Commentaries, Draft Articles on the Responsibility of States for International Crimes, Report of the International Law Commission on the Work of its Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 106, U.N. Doc.A/56/10 (2001) [hereinafter Commentaries], pg 105

[40] Genocide (n 25) 401

[41] J Crawford, ‘Revisiting the Draft Articles on State Responsible’ (1990) 10 European Journal of International Law 435, 439 – 440.

[42] Ibid.

[43] Milanović (n 17) 581, referring to the ICTY’s understanding that the effective control test was the only standard of control that the ICJ devised in Nicaragua, ignoring the complete dependence test.

[44] Trapp (n 11) 44-45.

[45] Tadić (n 20) 116.

[46] See page 10: the discussion on Travalio and Crawford’s suggestions that Article 8 should be flexible in accordance with the facts at hand.

[47] Milanović (n 17); Sara Scheideman, ‘Standards of Proof in Forcible Responses to Terrorism’ (2000) 50 Syracuse Law Review 249, 262.

[48] See Byman (n 30) 219, who highlights the common form of State support to contemporary terrorism: financing, training, equipping, logical assistance, etc; Cassese (n 19) 666 – 667; Trapp (n 11) 37 – 45.

[49] Cassese (n 19) 666.

[50] Bruce Hoffman, Al Queda, Trends in Terrorism and Future Potentialities: An Assessment (Santa Monica, CA, Rand, 2003) 16-17.

[51] ibid. See also Thomas Friedman, Longitudes and Attitudes: Exploring the World after September 11 (New York, NY, Farrar, Straus, Giroux, 2002) 5.

[52] Genocide (n 25) 400.

[53] Genocide (n 25) 406.

[54] Trapp (n 11) 42.

[55] Nikolas Rajkovic, ‘On 'Bad Law’ and 'Good Politics':  The Politics of the ICJ Genocide Case and Its Interpretation’ (2008) 21 Leiden Journal of International Law 885, 896, 900.

[56] Ibid 900.

[57] Schmitt (n 34) 30 - 33; Travalio and Altenburg (n 27) 95 – 105.

[58] Alexander  M.  Bickel,  The  Least  Dangerous  Branch:  The Supreme  Court  At  The  Bar  Of  Politics  (2d  ed. 1986) 111-98.

[59] Kimberley Trapp, State Responsibility for International Terrorism (Oxford University Press, 2011) 40 – 42, 44.

[60] Ibid 44.

[61] Corfu Channel Case (UK v Albania) [1949] ICJ Rep 4 (9 April) 22.

[62] Ibid 23.

[63] Ibid.

[64] James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) 12 - 14; James Crawford, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ (2002)  96 American Journal of International Law 874, 878.

[65] Becker (n 1) 1.

[66] Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (n 64) 12; Crawford, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ (n 64) 874, 878-80.

[67] Luigi Condorelli, ‘L’imputation á Létat d’un Fait Internationalement Illicite: Solutions Classique et Nouvelles Tendances’ (1984) 189(4) Hague Recueil Des Cours 9.

[68] Caron (n 27) 109 – 110. 

[69] Becker (n 1) 1 – 2.

[70] Gordon Christenson, ‘The Doctrine of Attribution in State Responsibility’ in RB Lillich, (ed), International Law of State Responsibility for Injuries to Aliens (Charlottes, VA, University of Virginia Press, 1983) 327.

[71] Robert Ago, ‘Fourth Report on State Responsibility’ (1972) 2 Year Book of the International Law Commission 71, UN Doc A/CN.4/264 96.

[72] Christine Chinkin, ‘A Critique of the Public/Private Dimension’ (1999) 10 European Journal of International Law 387.

[73] Becker (n 1) 274.

[74] The 9/11 Commission Report (n 4) 16 (Executive Summary).

[75] Intelligence source speaking in an author interview in Reeve (n 2) 270.

[76] Ruth Wedgwood, ‘Countering Catastrophic Terrorism: An American View’ in A Bianchi, (ed), Enforcing International Law Norms Against Terrorism (Oxford, Hart Publishing, 2004) 103, 104.

[77] Becker (n 1) 3.

[78] Report of the High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc A/59/565 (2004) 20. SC Res 1368, UN SCOR, 56th Session, 4370th Meeting, UN Doc S/RES/1368 (2001) 4.

[79] Yearbook of the International Law Commission, Volume II, Session 28, United Nations Publication, UN Doc A/CN.4/SER.A (1975) 60.

[80] James Crawford, First report on State responsibility by Mr. James Crawford, Special Rapporteur, International Law Commission, 15th Session, UN Doc A/CN.4/490/Add.9 (1998) 5.

[81] Caron (n 27) 154; Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London, Longmans, Green & Co, 1927) 134 – 135.

[82] Security Council Resolution 1368, UN SCOR, 56th Session, 4370th Meeting, UN Doc S/RES/1368 (2001).

[83] Becker (n 1) 258.

[84] ibid 362.

[85] Ibid 252.

[86] Report of the High-level Panel on Threats, Challenges and Change (n 78) 20.

[87] Derek Jinks, ‘State Responsibility for the Acts of Private Groups’ (2003)  4 Chicago Journal of International Law 83, 90.

[88] Abraham Sofaer, ‘Terrorism, the Law and the National Defence’ (1989) 126 Military Law Review 89, 101.

[89] Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc A/59/2005 (2005) 26.

[90] Becker (n 1) 355.

[91] Report of the Secretary-General, In Larger Freedom (n 89) 6; Report of the High-level Panel on Threats (n 78) 20.

[92] Travalio and Altenburg (n 27) 97, 102.

[93] See JP Rowles, ‘Military Responses to Terrorism: Substantive and Procedural Constraints in International Law’ (1987) 81 Am Soc Intl Law Proc 307, 314; J Lobel, ‘The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan’ (1999) 24 Yale J Intl Law 537 - 540; MA Drumbl, ‘Judging the 11 September’ (2002) 24 Human Rights Quarterly 323 – 330.

[94] Chapter VII of the United Nations Charter.

[95] Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory (Advisory Opinion of 9 July) reprinted in (2004) 43 ILM 1009. This has generated some support in the case of Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) (19 December 2005) 146 – 148. It has attracted severe criticism also, even from Judges presiding within the Wall case: see the separate opinions of Judge Higgins, ibid, 1063; Judge Kooijmans, ibid, 1072; Judge Buergenthal, ibid, 1079. In regards to the DRC Congo Case see: Separate Opinion of Judge Kooijmans para 16 – 31; Separate Opinion of Judge Simma para 3 – 16. It attracted criticism from the EU: GA Res ES-10/15, UN GAOR, 10th Emergency Special Sess, 27th mtg, UN Doc A/RES/ES-10/15 (2004). As well as academic criticism: Ruth Wedgwood, ‘The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defence’ (2005) 99 Am J Intl L 52; SD Murphy, ‘Ispe Dixit at the ICJ’ (2005) 99 Am J Intl Law 62 – 70.

[96] PM Dupuy, The Law After the Destruction of the Towers, Discussion Forum, EJIL, http://www.ejil.org/forum_WTC/ny-dupuy.html, 27 October 2001.

[97] Derek Jinks (n 87) 91.

[98] Gordon Travalio, ‘Terrorism, International Law, and the Use of Force’ (2000) 18 Wisdom International Law Journal 145 – 151, 170 – 172; MJ Glannon (n 27) 539, 550.

[99] Ruth Wedgwood, ‘Responding to Terrorism: The Strikes against Bin Laden’ (1999) 24 Yale Journal of International Law 559.

[100] SC Resolution 268, UN SCOR, 24th Session, 1491st Meeting, UN Doc S/9360 (1969) (Zambia); UN SC Res 273, UN SCOR, 24th Session, 1520th Meeting, UN Doc S/9542/Rev.1 (1969) (Senegal); see also SC Res 275, UN SCOR, 24th Session, 1526th Meeting, UN Doc s/9574 (1969) (Guinea). For condemnation of South Africa see UN SCOR, 36th Session, 2300th Meeting, UN Doc S/PV.2300 (1981) 5-6; GA Res 36/172, UN GAOR, 36th Session, 102nd Meeting, UN DOC A/RES/36/172 (1981).

[101] C Gray (n 27) 111-112. See also SC Res 275, UN SCOR, 24th Session, 1526th Meeting, UN Doc s/9574 (1969) (Guinea). For condemnation of South Africa see UN SCOR, 36th Session, 2300th Meeting, UN Doc S/PV.2300 (1981) 5-6; GA Res 36/172, UN GAOR, 36th Session, 102nd Meeting, UN DOC A/RES/36/172 (1981).

[102] Gray (n 27) 111-112.

[103] Tadić (n 20) 1518, 1544

[104] Notable Examples: The Israel-Lebanon conflict in 1968, UN SCOR, 23rd Session, 1462nd Meeting, UN Doc S/PV.1462 (1968) 2; The USA-Libya conflict in 1986, UN SCOR, 41st Session, 1682nd Meeting, UN Doc S/PV.2682 (1986) 43; GA Res 41/38, UN GAOR, 41st Session, Support No 53, UN Doc A/Res/41/38 (1986) 34. The rejection of complicity in the France, Britain, US-Libya Conflict in 1988-1989, SC Res 748, UN SCOR, 47th Session, 3063rd Meeting, UN Doc S/RES/742 (1992). However, the Security Council remained muted regarding the US’ forcible response in the Eastern Africa conflict in 1998.

[105] This has been reminiscent in past State practice, most explicitly in The Israel-Lebanon conflict in 1968: UN SCOR, 23rd Session, 1462nd Meeting, UN Doc S/PV.1462 (1968) 3. See (n 104) generally.

[106] Becker (n 1) 208; The 9/11 Commission  (n 4) 59 -70.

[107] SC Res 1189, UN SCOR, 53rd Session, 3915th Meeting, UN Doc S/RES/1189 (1998).

[108] Ibid.

                                                                                                                                                

[109]See The 9/11 Commission Report (n 4) 1 – 14.

[110] George Bush in a Presidential Address to the Nation, (11 September 2011), available at http://www.whitehousegov/news/releases/2001/09/20010911-16.html

[111] See SC Res 1368, UN SCOR, 56th Session, 4370th Meeting, UN Doc S/RES/1368 (2001); Statement by NATO Secretary General Lord Robertson (2 October 2001) 40 ILM 1268; European Union, Conclusion, and Plan of Action of the Extraordinary European Council Meeting (21 September 2001) 40 ILM 1264; Strengthening Hemispheric Cooperation to Prevent Combat and Eliminate Terrorism, OAS Res RC23/RES/01 (21 September 2001) 40 ILM 1273; S LaFraniere, ‘Putin Fives US Attacks A Strong Endorsement’ Washington Post 9 October 2001, A16; D Williams, ‘Mubarak Backs Strikes by US on Afghanistan’ Washington Post’ 10 October 2001, A17; PP Pan, ‘For Bush and Jiang, Question of Risk and Reward’ Washington Post, 18 October 2001, A26.

[112] European Union, Conclusion, and Plan of Action (n 111) 1264; Strengthening Hemispheric Cooperation to Prevent Combat and Eliminate Terrorism (n 111)1273.

[113] SC Res 1378, UN SCOR, 56th Session, 4415th Meeting, UN Doc S/RES/1378 (2001). C Stahn, ‘Collective Security and Self-Defence after the September 11 Attacks’ (2002) 10 Tilburg Foreign Law Review 10-15. The repeated failure in subsequent Resolutions to reference attribution of Al-Qaeda’s action to the Taliban casts doubt on the necessity of the requirement. See SC Res 1193, 52nd Session, 3921st Meeting, UN Doc S/RES/1193 (1998); SC 1214, UN SCOR, 52nd Session, 3952nd Meeting, UN Doc S/RES/1267 (1999); SC Res 1333, UN SCOR, 55th Session, 4251st Meeting, UN Doc S/RES/1333 (2000).

[114] SC Res 1373, UN SCOR, 56th Session, 4385th Meeting, UN Doc S/RES/1373 (2001).  See also SC Res 1368, UN SCOR, 56th Session, 4370th Meeting, UN Doc No S/RES/1368 (2001).

[115] Derek Jinks, ‘State Responsibility for the Acts of Private Groups’ 4 Chicago Journal of International Law 83 (2003) 85.

[116] Michael Byers, ‘Terrorism, the Use of Force, and International Law After 11 September’ (2002) 51 International & Comparative Law Quarterly 408.

[117] SC Resolution 268, UN SCOR, 24th Session, 1491st Meeting, UN Doc S/9360 (1969) (Zambia); UN SC Res 273, UN SCOR, 24th Session, 1520th Meeting, UN Doc S/9542/Rev.1 (1969) (Senegal); see also SC Res 275, UN SCOR, 24th Session, 1526th Meeting, UN Doc s/9574 (1969) (Guinea). For condemnation of South Africa see UN SCOR, 36th Session, 2300th Meeting, UN Doc S/PV.2300 (1981) 5-6; GA Res 36/172, UN GAOR, 36th Session, 102nd Meeting, UN DOC A/RES/36/172 (1981); Gray (n 27) 111-112.

[118] Sean Murphy relying on Article 9 of the ILC Draft Articles, ‘Terrorism and the concept of an “Armed Attack” in Article 51 of the UN Charter’ (2002) 43 Harvard International Law Journal 50; R Wolfrum and CE Phillip relying on Article 16, ‘The Status of the Taliban: Their Obligations and Rights Under International Law’ (2002) 6 Max Planck Y B UN L 561 – 569; Yoram Dinstein relying of Article 11, ‘Comments on the Presentations by Nico Krisch and Carsten Stahn’ in C Walter et al (eds), Terrorism as a Challenge for National and International Law: Security Versus Liberty? (Springer, 2004) 914 – 920.

[119] Luigi Condorelli, ‘Les Attenteas du 11 Septembre et Leurs Suites: Oú va le Droit International?’ 105 RGDIP (2001) 829 – 832, 839; MA Drumbl, ‘Victimhood in Our Neighbourhood: Terrorist Crime, Taliban Guilt and the Asymmetries of International Legal Order’ (2002) 81 North Carolina Law Review 1; MC Bonafede, ‘Here, There, and Everywhere: Assessing Proportionality Doctrine and US Uses of Force in Response to Terrorism After the September 11 Attacks’ (2002) 88 Cornell Law Review 155 – 160, 199; Slaughter and Burke-White (n 27) 1 – 20; ME O’Connell, ‘Lawful Self-defence to terrorism’ (2002) 63 University of Pitt Law Review 889, 901.

[120] O’Connell (n 119) 889, 901.

[121] Slaughter and Burke-White (27) 1 – 20.

[122] The 9/11 Commission Report (n 4) 19 - 23.

[123] Letter dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc S/2001/946.

[124] Thomas Franck, Recourse to Force: State Action against Threats and Armed Attacks (Hersch Lauterpacht Memorial Lectures) (Cambridge University Press, 2002).

[125] Jordan Paust, ‘Use of Armed Force against Terrorists in Iraq, Afghanistan and Beyond’ (2002) 35 Cornell International Law Journal 542.

[126] Ibid 543.

[127] See Antonio Cassese, ‘Terrorism is also Disrupting Crucial Legal Categories of International Law’ (2001) 12 Eur J Intl L 993 - 999; G Gaja, In What Sense was there an ‘Armed Attack’?, available at http://www.ejil.orf/forum_WTC/ny-gaja.html; N Schrijver, ‘Responding to International Terrorism: Moving the Frontiers of International Law for “Enduring Freedom”’ (2001) 48 Neth Intl L Rev 271 - 280, 286; G Abi-Saab, ‘The Proper Role of International Law in Combatting Terrorism’ (2002) 1 Chinese Journal of International Law 305; Paust (n 125) 542 – 543; Jinks (n 87) 85 - 90; J Quigley, ‘The Afghanistan War and Self-defence’ (2003) 37 Val U Law Rev 550 - 555; G Guillame, ‘Terrorism and International Law’ (2004) 53 Intl & Comp L Q 537 - 547 ; Hilary Duffy, The War on Terror and the Framework of International Law (Cambridge University Press, 2005) 48; E Myer and N White, ‘The Twin Towers Attack: An Unlimited Right to Self-defence?’ (2002) 7 J Conflict & Sec L 4; Becker (n 1); Trapp (n 11) 36 – 52.

[128] Becker (n 1) 222.The agency standard is a term used by Becker throughout his book to denote the agency relationship (between State and non-State actor) created by the high threshold of attribution in the ILC Draft Articles and accompanying case law. 

[129] Jinks (n 87) 88.

[130] Travalio and Altenburg (n 27) 102.

[131] Glannon (n 27) 439, 549.

[132] Travalio and Altenburg (n 27) 102.

[133] Trapp, State Responsibility for International Terrorism (n 11) 48 – 51; Kimberley Trapp, ‘The Use of Force against Terrorists: A Reply to Christian J. Tams’ (2009) 20 (4) European Journal of International Law 1049 – 1055.

 

[134] M Sassóli, ‘State Responsibility for Violation of International Humanitarian Law’ (2002) 84 International Review of the Red Cross 401, 409.

[135] Raphael F. Perl, Foreign Affairs, Defense, and Trade Division, Congressional Research Service, ‘Terrorism, the Future, and U.S. Foreign Policy’, updated 13 September 2001, order code IB95112, quoted in Reeve (n 2) 262

[136] Jinks (n 87) 88.

[137] Becker (n 1) 231.

[138] Rachel Lorna Johnstone, ‘State Responsibility: A Concerto for Court, Council and Committee’ (2008) 37 Denver Journal of International Law & Policy 63 – 70; Becker (n 1) 231.

[139] Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution and Due Diligence in International Law’ (2003) 36(2-3) New York University Journal of International Law and Politics 280.

[140] M Garcia-Mora, International Responsibility for Hostile Acts of Private Persons Against Foreign States (The Hague, Nijhoff, 1962) 27.

[141] William E. Hall, A Treatise on International Law, (Clarendon Press, 2nd Edition, 1884); see also C. Eagleton, ‘Measure of Damages in International Law’ (1929-30) 39 Yale Law Journal 52 – 56; Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution and Due Diligence in International Law’ (2003) 36(2-3) New York University Journal of International Law and Politics 280; RE Curtis, ‘The Law of Hostile Expeditions as Applied by the United States’ (1914) 8 American Journal of International Law 1, 10, 33 – 36.

[142] William E. Hall (n 140) 193.

[143] Report of the International Law Commission to the General Assembly, UN GAOR, 56th Session, Supp No 10, UN Doc A/56/10 (2001) 73. See also I Brownlie, System of Law of Nations: State Responsibility Part 1 (Clarendon Press, 1983) 39.

[144] Ibid           

[145] First discussed by Dionisio Anzilotti, Teoria Generale Della Responsibilitá Dello Stato Nel Diritto International (Firenze, 1902) 172; See more modern discussions: I Brownlie, ‘State Responsibility and the International Court of Justice’ in M Fitzmaurice and d Sarooshi, (eds), Issues of State Responsibility before International Judicial Institutions (Hart Publishing, 2004) 11; Crawford (n 41) 438; PM Dupuy, ‘International Criminal Responsibility of the Individual and International Responsibility of the State’ in A Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 2 (Oxford University Press, 2002) 1085 – 1096.

[146] United States Department of State, Country Reports on Terrorism 2004 (2005) 79 – 81 (Cambodia), 74 (Nepal). Other examples: ibid 30 (Kenya); ibid 64 – 66 (Jordan); ibid 38 (Laos); ibid 54 (Albania).

[147] Ibid 31 (Somalia)

[148] Becker (n 1) 269 – 272.

[149] H Krieger, ‘Limitations on Privacy, Freedom of Press, Opinion and Assembly as a Means of Fighting Terrorism’ in C Walter et al (eds), Terrorism as a Challenge for National and International Law: Security Versus Liberty? (Springer, 2004) 51.

[150] Becker (n 1) 270.

[151] H Grotius, JB Scott, (tr) (1646) 2 De Jure Belli Ac Pacis 523 – 526. See also:  E De Vattel, CG Fenwick (tr), 2 The Law of Nations or, the Principles of Natural Law: Applied to the Conduct and to the Affairs of Nations and Sovereigns (Legal Classics Library, 1916); W Blackstone, W Morrison (eds), 4 Commentaries on the Laws of England (1765-69) (Cavendish, 2001) 65 – 72.

[152] H Grotius (n 150) 523 – 526.

[153] Notable examples: T Twiss, The Law of Nations Considered as Independent Political Communities (Clarendon Press, 1875) 20; F De Martins, 1 Traité De Droit International (Paris, Chevalier-Merescq, 1883) 563. Also the concept became utilised in case law: Case of Cotesworth & Powell (Great Britain v Columbia) (1875), reprinted in JB Moore, 2 History and Digest of International Arbitrations to which the United States have been a Party (1898) 2050; The Montijo Case (US v Columbia) (1875) reprinted in JB Moore, 2 History and Digest of International Arbitrations to which the United States have been a Party (1898) 1421 – 1438; Poglioli Case (Italy v Venezuela) (1903) 10 R Intl Arb Awards 669, 689.

[154] This came to light in the Janes Case: “Even if non-punishment were conceived as some kind of approval – which in the Commission’s view is doubtful – still approving of a crime has never been deemed identical with being an accomplice to that crime”, Laura MB Janes (USA) v United Mexican States (1925) 4 R Intl Arb Awards 87. See also George Fletcher indicated that amidst the inter-war environment complicity was been exploited and fabricated as a pretext for imperialist ambitions, see more generally RB Lillich, ‘The Current Status of the Law of State Responsibility for Injury to Aliens’ in RB Lillich, (ed), International Law of State Responsibility for Injuries to Aliens ( University of Virginia Press, 1983) 1 - 10.

[155] AV Freeman, The International Responsibility of States for Denial of Justice (Liége, H. Vaillant-Carmanne, 1938) 20; also C. Eagleton, ‘Measure of Damages in International Law’ (1929-30) 39 Yale Law Journal 56.

[156] J Crawford, ‘First Report on State Responsibility’, UN Doc A/CN.4/490/Add.4 (1998) 10; J Crawford (n 41) 438; Report of the International Law Commission to the General Assembly, UN GAOR, 56th Session, Supp No 10, UN Doc A/56/10 (2001) 73.

[157] Robert Ago, ‘Fourth Report on State Responsibility’ (1972) 2 Year Book of the International Law Commission 71, UN Doc A/CN.4/264 96.

[158] Schmitt (n 27) 400; BA Feinstein, ‘Operation Enduring Freedom: Legal Dimensions of an Infinitely Just Operation’ (2002) Journal of Transnational Law and Policy 201,271; TD Gill, ‘The Eleventh of September and the Right of Self-Defence’ in WP Heere (ed), Terrorism and the Military: International Legal Implications (The Hague, TMC Asser, 2003)  40; B Graefrath, ‘Complicity in the Law of International Responsibility’ (1996) 29 Revue Belge de Droit Intl 370, 370;

[159] S Sucharitkul, ‘Terrorism as an International Crime: Questions of Responsibility and Complicity’ (1989) 19 Israeli Year Book of International Law 247, 256 – 258; see also TM Franck and D Niedermeyer, ‘Accommodating Terrorism: An Offence against the Law of Nations’ (1989) 19 Israeli Year Book of Human Rightts 75, 99.

[160] Schmitt (n 41) 400

[161] Wolfrum and Phillip (n 118) 559 – 599; see also R Wolfrum, ‘The Attack of September 11, 2001, The Wars Against the Taliban and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict?’ (2003) 7 Max Planck Year Book of United Nations Law 1 – 37.

[162] Wolfrum and Phillip (n 118) 595.

[163] Report of International Law Commission to the General Assembly, UN GAOR, 56th Session, Supp No 10, UN Doc A/56/10 (2001) 159.

[164] Genocide (n 25) 420.

[165] See generally Chinkin (n 72); Christenson (n 70); Becker (n 1).

[166] J Brierly, ‘The Theory of Implied State Complicity in International Claims’ (1928) 9 British Year Book of International Law 42, 49.

[167] George Bush in a Presidential Address (n 110).

[168] See generally: Schmitt (n 27) 400; Glannon (n 27) 539, 544; J Brunnée and SJ Troope, ‘’The Use of Force: International Law After Iraq’ (2004) 53 International & Comparative Law Quarterly 785, 795; F Kirgis, Israel’s Intensified Military Campaign against Terrorism (2001), available at http:/www.asil.org/insights.html; J Corone, Acts of War and State Responsibility in ‘Muddy Waters’: The Non-State Actor Dilemma (2001), available at http:/www.asil.org/insight/insigh77.html; KM Meesen, ‘Current Pressures on International Humanitarian Law: Unilateral Recourse to Military Force against Terrorist Attacks (2001) 28 Yale Journal of Internationall Law 341, 353.

[169] Schmitt, Counter-Terrorism and the Use of Force in International Law (n 34) 87.

[170] Schmitt, ‘‘Bellum Americanum Revisted’ (n 27) 405.

[171] Randelzohfer (n 27) 801.

[172] Byers, (n 116) 409.

[173] Jinks (n 87) 90.

[174] Glannon (n 27) 544

[175] Yoram Dinstein, War Aggression and Self Defence (Cambridge University Press, 3rd Edition, 2001) 213.

[176] Jinks (n 87) 92.

[177] Abraham Sofaer, ‘Terrorism, the Law and the National Defence’ (1989) 126 Military Law Review 89 101.

[178] TM Franck, ‘Terrorism and the Right of Self-Defence’ (2001) 95 American Journal of International Law 839, 841. Additional, the Israel-Lebanon conflict (1968) saw the condemnation of absolute responsibility or the harbouring doctrine, see UN SCOR, 23rd Session, 1462nd Meeting, UN Doc S/PV.1462 (1968). Moreover, the ICJ in Nicaragua did not consider toleration or assistance to satisfy the attribution requirement.

[179] Feinstein (n 157) 271. Also, see JM Beard, ‘America’s New War on Terror: The Case for Self-Defence Under International Law’ (2002) 25 Harvard Journal of Law and Public Policy 559, 577 – 585 arguing an expansion in the use of force principles, particularly Article 2(4).

[180] MG Kohen, ‘The Use of Force by the United States After the End of the Cold War and Its Impact on International Law’ in M Byers and G Nolte, (eds), United States Hegemony and the Foundations of International Law (Cambridge University Press, 2003) 197, 221 – 226.

[181] Becker (n 1) 236.

[182] Travalio and Altenburg (n 27) 102.

[183] Byers (n 116) 408.

[184] Cassese (n 19) 666.

[185] Travalio and Altenburg (n 27) 112.

[186] Rainer Grote, ‘Between Crime Prevention or Prosecution and the Laws of War: Are the Traditional Categories of International Law Adequate for Assessing the Use of Force against International Terrorist?’ in C Walter et al (eds), Terrorism as a Challenge for National and International Law: Security Versus Liberty? (Berlin, Springer, 2004) 951.

[187] Schmitt (n 27) 51.

[188] Becker (n 1) 232.

[189] The 9/11 Commission Report (n 4) 66.

[190] Elizabeth Nielsen, ‘State Responsibility for Terrorist Groups’ (2010 – 2011) 17 U.C. Davis Journal Of International Law and Policy 151 190.

[191] Becker (n 1) 335.

[192] See Reeve (n 2) 178 – 198 for the specific workings of Al Qaeda.

[193] Sassoli (n 133) 409.

[194] W Friedmann, ‘The Growth of State Control Over the Individual and its Effect upon the Rules of International State Responsibility’ (1938) 19 British Year Book of International Law 118, 144.

[195] Vincent-Joil Proulx, ‘Babysitting Terrorists: Should States Be Strictly Liable for Failing to Prevent Transborder Attacks?’ (2005) 23 Berkeley Journal of International Law 645.

[196] Jinks (n 87) 83 – 84.

[197] Daniel Bodansky & John R. Crook, ‘Symposium: The ILC's State Responsibility Articles’ (2002) 96 American Journal of International Law 773.

[198] P Szasz, ‘The Security Council Starts Legislating’ (2002) 96 American Journal of International Law 901.

[199] Genocide (n 25) 401; Crawford (n 41) 439 – 440.

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