Enforcing International Law Norms Against Terrorism The scale and horror of recent terror attacks and the panic which ensued throughout the world has forced policy-makers and international lawyers to re-examine international legal tools available to enforce norms against terrorism. The magnitude of the attacks, the modalities of the operations, the profiles of the terrorists and the transnational structure of some terrorist organisations all cast doubt on the adequacy of the existing political and legal framework to fight terrorism. Due to this perception, governments have increased the intensity of measures to combat terrorist activities such as using military force against States sponsoring terrorism, freezing assets of terrorist organisations, and promulgating national secu- rity measures designed to protect the State against would-be terrorists. This book comprehensively analyses the suitability of existing interna- tional legal tools to enforce rules prohibiting terrorism. Contributions from leading experts in international law examine, among others, questions relating to the proper role of international law in combating terrorism, the legality of covert operations against terrorism, whether the law of armed conflict can be applied to the ‘war against terror’, domestic anti-terror laws and their compatibility with human rights standards, and how to regulate the Internet to prevent terrorist usage. In addition, the ways in which States can co-operate together to more effectively investigate terrorist infrastructures and apprehend suspects is focused upon. The interplay between different layers of legal authority at international, regional and domestic levels is also subject to review. This thorough examination of the array of legal means at the international community’s disposal to enforce norms against terrorism will allow readers to appreci- ate the real challenges that terrorism and the responses to it pose to the international legal system. Volume 4 in the series, Studies in International Law Studies in International Law Volume 1: Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law Mac Darrow Volume 2: Toxics and Transnational Law: International and European Regulation of Toxic Substances as Legal Symbolism Marc Pallemaerts Volume 3: The Chapter VII Powers of the United Nations Security Council Erika de Wet Volume 4: Enforcing International Law Norms Against Terrorism edited by Andrea Bianchi Volume 5: The Permanent International Criminal Court edited by Dominic McGoldrick, Peter Rowe and Eric Donnelly Enforcing International Law Norms Against Terrorism Edited by ANDREA BIANCHI Graduate Institute of International Studies with the editorial assistance of Yasmin Naqvi OXFORD AND PORTLAND OREGON 2004 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © The editor and contributors 2004 The editor and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salters Boatyard, Folly Bridge, Abingdon Rd, Oxford, OX1 4LB Telephone: +44 (0)1865 245533 Fax: +44 (0) 1865 794882 email: mail@hartpub.co.uk WEBSITE: http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1-84113-430-9 (hardback) Typeset by Olympus Infotech Pvt Ltd, India, in Palatino 10/12 pt Printed and bound in Great Britain by Biddles Ltd, www.biddles.co.uk MPG Books Ltd, Bodmin, Covnwall Foreword It may be ill advised to start a research project in the wake of a catastrophe, causing an emotional shock. Yet the foundations of this project were laid in the aftermath of the 11 September 2001 attacks in New York and Washington. The sense of bewilderment and dismay at the brutality of terrorist violence, with which most of us were taken, soon yielded to a compelling sense of moral commitment to action. Oportet ut scandala eveniant, as the Latin adage goes, although at times one would wish to question its wisdom. It would be preferable indeed if the adjustment of the law to the new challenges and realities of the societal body from which it emanates would materialize regardless of catastrophes. However, it surely is a lesson to be learnt from history that catastrophes frequently act as a catalyst for change. The prevailing preoccupation, at the time, that international law might not possess adequate means to counter the threat of terrorism seemed unsubstantiated, yet represented a challenge for governments, other international actors and the scholarly community alike. The urge to pro- vide a professional insight was a reflection of a desire to compensate, if not substitute, for the sense of impuissance to which many of us felt rele- gated. When every single colleague I had made contact with, with no exception, gladly accepted to join the project, I realised that my concerns were shared and that they were matched by a general and genuine sense of intellectual commitment within the profession. To assess the viability and efficacy of the wide array of legal tools avail- able at international law to enforce norms against terrorism is apparently an easy task. The implementation of norms in such different areas as the use of force and the system of collective security, the law of State respon- sibility, international humanitarian and human rights law and the law of jurisdiction poses different problems and requires specific analysis with regard to each particular regime. This is all the more so, if one wants to preserve the unity of the international legal system and the overarching structure of its general principles and processes as generally understood and applied. Furthermore, the interaction between the different levels of legal authority involved in the process of implementation requires careful consideration. As I write these few lines, the bloodshed caused by the terrorist attack in Madrid is still a vivid memory. It has not been the only attack since 11 September 2001. Presumably, it will not be the last. We are bound to live under the Damocle’s sword of terrorist violence in the years to come. The feeling that no place can provide a safe shelter has crept its way into the world civil society. Regrettably, this is precisely the effect intended by terrorist groups. Besides the many scenarios it evokes, the ‘war on terror’ to many human beings is also a personal itinerary of introspection and a cause to pose fundamental questions, bearing on the very essence of life and human nature. The less ambitious task of this book is to assess to what extent international law is well equipped to deal with the resur- gence of international terrorism on such a grand scale. Short of providing an answer to the more essential quandaries that international terrorism entails, it is hoped that this collection of essays may help to better under- stand how the law can complement politics by responding effectively to these types of threats. Within the framework of the research project, a conference was held at the Catholic University in Milan on 10–11 May 2002, in which the contrib- utors submitted their drafts to the scrutiny of the other participants and the public. There is no doubt that the event was an important contribution to the project, as it provided a forum to discuss our ideas and preliminary findings. The organisation of an international conference is no easy job and I would like to express my gratitude to all of those who participated in the effort. Silvia Borelli, Anna Gardella and Francesca Tremolada helped me with the endless tasks and practicalities that make the organisation of a conference a multifaceted activity. The administrative staff of the Catholic University was very helpful. Mr L Dioli, Head of logistical services and his deputy, Ms A Patriarchi, put at the organiser’s disposal their profes- sional skills and their knowledge of the institution’s somewhat complex organisational practices. During the two days of the conference three stu- dents, Greta Barbone, Federica Bisol and Nazira Seliman attended to the participants and made sure that what had been planned in advance actu- ally took place. Ms Domenica Cuzzocrea, the Secretary of the Institute of International Studies, provided them with an unrivalled model of kind- ness and efficiency and supervised their work in a motherly fashion. I would like to thank also the Dean of the Law Faculty, my colleague and friend Giorgio Pastori for his encouragement and unconditional support. Were it not for him, I doubt I would have ever set out to organise the event. Institutions from the public and private sector showed their sensitivity to our intellectual efforts and manifested particular interest in the research topic. In particular, the substantial financial support of the Fondazione Cariplo, the Regione Lombardia, and the Comune di Milano is gratefully acknowledged. My heartfelt thanks go also to Professor Alan Boyle of the University of Edinburgh; Professor Giorgio Gaja of the University of Florence and to Judge Theodor Meron, President of the International Criminal Tribunal for the former Yugoslavia for having masterfully chaired the three sessions vi Foreword Foreword vii in which the Conference was divided. Overall, my recollection of the Conference is that of an intellectually stimulating atmosphere coupled with the pleasant sensation that everyone felt well at ease in the fairly diverse group, which the participants made. Junior colleagues were encouraged and cheerfully admitted into the club, less junior ones submit- ted their views and constructively engaged into the debate that followed their presentations. In the highly confrontational and hierarchically struc- tured academic world where egos more than intellectual constructs often come to clash, the Conference stood out as a comforting exception. Finally, I would like to express my gratitude to my editorial assistant, Yasmin Naqvi, assistant to the International Law Section and doctoral candidate at the Graduate Institute of International Studies in Geneva. Yasmin joined the project at a much later stage, but her contribution has been invaluable. She relentlessly worked on the manuscripts and even found the time and energy to co-author one of the pieces that appear in the volume. Her cheerful disposition and full commitment to the project deserve my appreciation and gratitude. It is customary to stress the difficulties inherent in the editor’s job. Indeed, to undertake the editing of a collection of essays on a highly politicised topic, with events unfolding so rapidly that no one could reasonably aspire to including them all in their contributions, may well have appeared to many as a particularly unprofitable business. At the end of the exercise, while not at all denying the many hurdles that have stood in the way, one feeling definitely prevails over the others. If the time and energy this project has taken was the price to ensure that a group of dis- tinguished colleagues could work together in a spirit of utter intellectual freedom, mutual respect and sympathy, it surely was a fair one for me to pay. As usual, only the reader will tell if it was worth the effort. AB Geneva, March 2004 [...]... Cyberterrorism: A New Challenge for International Law Richard Garnett and Paul Clarke Part V 377 415 453 465 Conclusions 19 Enforcing International Law Norms Against Terrorism: Achievements and Prospects Andrea Bianchi 491 Index 535 Introduction The Proper Role of International Law in Combating Terrorism* GEORGES ABI-SAAB W HAT IS THE proper role of international law in combating terrorism? Has it been affected... Sponsors of Terrorism: International Responsibility 5 the point that the prohibition of clearly identified acts of terrorism may be found in the law of Geneva”.6 Judge Rosalyn Higgins nevertheless asks: Does the theme of terrorism really constitute a distinct topic of international law? … Is there an international law of terrorism; or merely international law about terrorism? Is our study about terrorism. .. of International Law in Combating Terrorism Georges Abi-Saab v ix xiii Part I Terrorism and the International Legal System: The Alleged Inadequacy of International Law and the Quest for an Effective Response 1 State Sponsors of Terrorism: Issues of International Responsibility Pierre-Marie Dupuy 2 The Legality of Covert Operations Against Terrorism in Foreign States Natalino Ronzitti 3 The War against. .. Require?” (2002) 40 International and Comparative Law Quarterly at 366; T Franck, Terrorism and the Right of Self-Defense”, (2001) 95 American Journal of International Law, 839ff; C Stahn, International Law at a Crossroad? The Impact of September 11”, (2002) 62 ZaöRV, 1–2, at 214 ff Compare M Travalio, Terrorism, International Law and the Use of Force”, (2000) 18 Wisconsin International Law Journal, 145ff;... 11 septembre et leurs suites: où va le droit international? ”, RGDIP, 829 ff; N Schrijver, “Responding to International Terrorism: Moving the Frontier of International Law for ‘Enduring Freedom’ ”, (2001) 48 Netherlands International Law Review, 371 ff; AM Slaughter and W Burke-White, “An International Constitutional Moment, (2002) 43 Harvard International Law Journal, 1 ff 2 A Sofaer, “On the Necessity... of Paris I, Le droit international face au terrorisme (Paris, Pedone, 2002) at 35–68.; C Stahn, International Law at a Crossroads? The Impact of September 11, ZaöRV (Heidelberger Journal of International Law, 2002, 62/1–2, 182 ff, at 186 See also UN GA Res “Measures to Eliminate International Terrorism of 30 January 2001, UN Doc 1/Res/55/158; J Murphy, “Defining International Terrorism: A Way Out... 6 The UN Security Council and International Terrorism Bardo Fassbender 7 Countering Catastrophic Terrorism: An American View Ruth Wedgwood 8 The Action of the European Union to Combat International Terrorism August Reinisch 83 103 119 xii Contents 9 Fighting Against International Terrorism: The Latin American Response Michelangela Scalabrino 163 Part III International Terrorism as an Individual Crime:... threatening the US and its allies, as threats to national security”.2 1 See in particular A Cassese, Terrorism is also Disrupting Some Crucial Legal Categories of International Law , (2001) 12 European Journal of International Law, 993 ff; C Greenwood, International Law and the ‘War against Terrorism ”, (2002) 78 International Affairs, 78 ff; C Tomuschat, “Der 11 September 2001 und seine rechtlichen Folgen”,... basically two ways to ensure respect of certain rules of international law by non-State actors, particularly in those areas such as international human rights, humanitarian law and terrorism, where compliance with international law standards by these actors is most needed The first technique consists of expanding the range of subjects of international law, thus including non-State entities, the second one... Sorel, “Some Questions About the Definition of Terrorism and the Fight Against Its Financing”, (2003) 14 European Journal of International Law, no 2, 365–378 25 See D Vagts, “Which Courts Should Try Persons Accused of Terrorism? ” 2003 14 European Journal of International Law, no 2, 313–326 26 L Condorelli, “The Imputability to States of Acts of International Terrorism , (1989) 19 Israeli Yearbook on Human . Enforcing International Law Norms Against Terrorism The scale and horror of recent terror attacks and the panic which ensued throughout the world has forced policy-makers and international lawyers to. in international law examine, among others, questions relating to the proper role of international law in combating terrorism, the legality of covert operations against terrorism, whether the law. 4: Enforcing International Law Norms Against Terrorism edited by Andrea Bianchi Volume 5: The Permanent International Criminal Court edited by Dominic McGoldrick, Peter Rowe and Eric Donnelly Enforcing