Goldman, Robert K.

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Human Rights BriefVolume 9 | Issue 1 Article 12001Certain Legal Questions Raised by the Septermber11th AttacksRobert K. GoldmanAmerican University Washington College of LawFollow this and additional works at: http://digitalcommons.wcl.american.edu/hrbriefPart of the International Law CommonsThis Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ AmericanUniversity Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons@ American University Washington College of Law. For more information, please contact fbrown@wcl.american.edu.Recommended CitationGoldman, Robert K. "Certain Legal Questions Raised by the Septermber 11th Attacks." Human Rights Brief 9, no. 1 (2001): 2-4.2Certain Legal Questions and Issues Raised by the September 11th Attacksby Professor Robert K. Goldman*In trying to analyze the legal implications of the eventsof September 11th, international lawyers and govern-ment officials are finding themselves in somewhatuncharted territory. Because the attacks on the Pentagonand the World Trade Center complex were apparently car-ried out by non-state actors who may have planned, orga-nized and financed key aspects of their illicit activities inother states, it is not easy to frame U.S. responses withinfamiliar categories recognized by international law. Nor-mally, a state goes to war against another state or internalenemies. Although the war that the U.S. has pledged towage against the perpetrators of these horrific acts and thestate(s) that harbor them does not fit neatly within exist-ing paradigms, any ensuing hostilities will nonetheless belargely based on or extrapolated from preexisting inter-national law rules and principles.In analyzing these events, it is important to distinguishtwo separate, but interrelated branches of international law:the law governing the resort to armed force, and the lawapplicable to the conduct of hostilities. The former isfound in the United Nations Charter (Charter) and statepractice, and the latter in the law of armed conflict, alsoknown as International Humanitarian Law (IHL).Historically, states recognized a right to resort to warbetween or among themselves as a lawful means to settlepolitical disputes. Hostilities were frequently triggered byformal declarations of war, armed attacks followed bysuch a declaration, or other acts indicating an intentionto engage in warfare. With the adoption of the UN Char-ter in the wake of World War II, the legal rules changedin this regard. By virtue of Articles 2(3) and 2(4) of the UNCharter, states renounced the use of force as a means ofsettling disputes and effectively outlawed aggressive war.However, Article 51 of the Charter recognizes that a statethat is the victim of an armed attack (presumably byanother state(s)) can lawfully resort to force in exercise ofthe inherent right of individual or collective self-defenseagainst aggression.The term “war” has a particular meaning in U.S. law,which involves complex constitutional issues of separa-tion of powers. Under the federal Constitution, only Con-gress can declare war and it has not done so since WorldWar II. However, the U.S., without such a declaration,but under the President’s express and implied powers, hasbeen involved in numerous armed conflicts, includingKorea, Vietnam, Kosovo, Grenada, and Panama. Like hisfather in the Gulf war, President Bush has received fromCongress, not a declaration of war as such, but a joint res-olution authorizing him to use military force againstnations, organizations and persons involved in these attacksand those states which harbor such organizations andpersons. Various actions on the international level also havesignificantly strengthened the President’s hand to under-take, consistent with international law, hostile acts againstthese persons, groups and/or states. Certainly, if a state had launched these attacks, theU.S., as the victim of aggression, could under Article 51 ofthe Charter legitimately take military action against thatstate and call on other states to assist it. Significantly, theNATO Treaty—which declares an attack on one memberan attack on all members of the alliance—has been invokedcontinued on next pageThe Human Rights Brief is a publication of the Center for Human Rights and Humani-tarian Law in conjunction with the Washington College of Law at American University.No portion of this newsletter may be reprinted without the express written permission ofthe Human Rights Brief. All correspondence, reprinting and subscription requests, and arti-cles submitted for publication may be sent to: The Human Rights Brief, Center for HumanRights and Humanitarian Law, Washington College of Law, American University, 4801Massachusetts Avenue, NW, Suite 630, Washington, DC 20016. Ph. (202) 274-4027. Fax(202) 274-4028. e-mail: hrbrief@wcl.american.edu. Internet: www.wcl.american.edu/hrbrief.The views expressed in this publication are those of the writers and are not necessarilythose of the editors, the Center, or American University. © Copyright Human Rights Brief, 2001.  ISSN 1522-6808Co-Editors-in-Chief Shara AbrahamNatasha Parassram ConcepcionSenior Articles Megan HaglerEditors Alison A. HillmanManaging Editor Inbal SansaniArticles Editors Melissa Alcantara Jennifer ClappJohn Fieldsend Chanté LascoJill N. QuinnStaff Writers Erin Chlopak Ossai MiazadChristin E. Paglen Mary Ellen TsekosColumnist Ismene N. ZarifisPublication Editors Amit Chugh Alfred J. Finch IIIAlumni Board Vanessa Allen, Gillian Brady, Michelle Domke, Gabriel Eckstein, Fernando González-Martín, Claudia Martin, Mair McCafferty, Rochus Pronk, AyeshaQayyum, Diego Rodríguez-Pinzón, Brian Tittemore, Shashikala WarrierAn equal opportunity/affirmative action university.Printed on recycled paper.for the first time, and may well result in unprecedentedjoint military operations under that treaty. A claim byNATO members to be acting in accordance with Article 51and the Charter’s purposes would carry great weight andcontribute to the interpretation of Charter norms. Mostimportantly, the United Nations Security Council, on Sep-tember 12, 2001, unanimously approved Resolution 1368(2001), stating that any act of international terrorism wasa threat to international peace and security. While callingon all states to bring to justice “the perpetrators, organiz-ers and sponsors” of these terrorist acts, it stressed that“those responsible for aiding, supporting or harboringthem would be held accountable,” and pointedly recog-nized the right to individual and collective self-defenseunder the Charter. This measure, while not expresslyauthorizing the use of force, is sufficiently broad that it willunquestionably be relied on by the U.S. if it decides toemploy force against any or all of these parties.Can the U.S. be at “war” and engage in hostilities againstnon-state actors? Historical precedents suggest that it can.For example, the U.S. in 1805 sent an expeditionary forceto Tripoli to destroy the Barbary Pirates. In 1916, the U.S.military was sent into Mexico to capture or kill Pancho Villaand his band after they attacked U.S. nationals in New Mex-ico. It is well settled that non-state actors who engage inhostile acts during an armed conflict may be lawfully killedor wounded. IHL permits governments engaged in civilwars and lesser internal hostilities to attack members of dis-sident armed groups, as well as the targeting of individual1Goldman: Certain Legal Questions Raised by the Septermber 11th AttacksPublished by Digital Commons @ American University Washington College of Law, 20013civilians who directly participate in internal or interstatehostilities. All such persons are effectively non-state actors.One might anticipate that the U.S., by analogy to interstatearmed conflict rules, will treat Osama bin Laden and hisassociates as constituting a paramilitary organization whosemembers do not comply with the most basic rules and cus-toms of warfare. As such, the U.S. could treat them asunprivileged combat-ants subject to directattack and, if captured,not entitled to prisonerof war status. Accord-ingly, they would beliable for trial in a U.S.court and punishmentfor all their hostile acts,as well as pre-captureoffenses. These offensesentail multiple crimesunder U.S. and inter-national law associatedwith the attacks on thePentagon and theWorld Trade Centercomplex, and thebombings of the U.S.embassies in Kenya andTanzania in 1998, forwhich bin Laden hasalready been indicted.Had a state launched these attacks, that state wouldclearly be responsible for having initiated an aggressive warin violation of the UN Charter. It is unclear whether non-state actors can be charged with and tried for this partic-ular offense. However, if their attacks are treated as actsof war, those acts would constitute serious violations of thelaws and customs of war. In this regard, IHL categoricallyprohibits launching intentional attacks against the civilianpopulation, individual civilians, as well as civilian objects.Moreover in 1977, states by treaty (Protocol Additional tothe Geneva Conventions of 12 August, 1949, and Relatingto Protection of Victims of International Armed Con-flicts—Protocols I & II) prohibited in all armed conflictsacts or threats of violence whose primary purpose is to ter-rorize the civilian population. The World Trade Centercomplex was a civilian object dedicated to ordinary civil-ian purposes and inhabited by peaceable civilians. Thus,these buildings were immune from direct attack. Theirdeliberate destruction with the clear intent to kill orwound civilians within those structures constituted an ille-gal indiscriminate attack. Another clear and illicit purposeof the attacks was to terrorize and attack the morale of thecivilian population. So great was the intended and actualnumber of civilian deaths attending these attacks thatthey also might well qualify as a crime against humanity.The attack against the Pentagon arguably was also illegal.Although the Pentagon does qualify under IHL as a mil-itary objective, and is thus a lawful target of attack duringan armed conflict, it was attacked by perfidious or treach-erous means—a hijacked civilian jetliner. Other international crimes, punishable under U.S. lawand the laws of other nations, were committed by the per-petrators of these attacks and their confederates. Theseizure and destruction of the jetliners violated the 1970Hague anti-hijacking convention, as well as 18 U.S.C. § 32,which imposes criminal liability for, inter alia, willfullydestroying an aircraft and assaulting its passengers andcrew. Further, the effect on the passengers of these hijackedplanes might well amount to hostage taking in violation ofthe Convention against the Taking of Hostages and18 U.S.C. § 1203, which contains a similar proscription. Mostof these crimes arealready within the sub-ject matter jurisdictionof U.S. courts. Warcrimes, crimes againsthumanity, hijacking,hostage taking, andother serious viola-tions of the laws andcustoms of war areinternational crimesof universal jurisdic-tion, making the per-petrators subject tocriminal prosecutionby other states. At pre-sent, there is no inter-national court withjurisdiction to try theperpetrators and theiraccomplices. How-ever, the UN SecurityCouncil, or perhaps a group of states which are parties tothese treaties, such as NATO members, could establish anad hoc tribunal for this purpose, based on the Yugoslav andRwanda models.President Bush has stated that the U.S. will make no dis-tinction between the perpetrators and those, presumablystates, who harbor them. Can the U.S. invoke Article 51 ofthe UN Charter to justify taking military action against astate that did not perpetrate the attacks of September 11,but merely harbors the intellectual authors of and otheraccomplices in these events? It is legally plausible thatthe U.S. and its allies might impute these acts of terrorism,constituting an armed attack, to such a state(s), therebyholding it responsible for these crimes. International lawrecognizes that the acts of non-state actors may be attrib-uted under certain circumstances to a state. The U.S. mayargue that Afghanistan, for example, is guilty of bothomission and commission in connection with these andpreviously realized or foiled attacks by Osama bin Ladenand his associates. That argument might posit that the Tal-iban’s failure to take action against bin Laden effectivelyamounts to a pattern of state tolerance of and acquiescencein these illicit acts sufficient to impute and thus attributethe conduct to the state itself. International human rightsbodies have used such reasoning in finding states respon-sible for the conduct of non-state actors. For example, in2000, the Inter-American Commission on Human Rights(Commission) in the Massacre of Rio Frio case found Colom-bia responsible for atrocities committed by the Autode-fensas Unidas de Colombia, a paramilitary group. The Com-mission found that, even though the state had declaredCertain Legal Questions, continued from previous pagecontinued on next pageSeptember 11, 2001Credit: Shaphan Connely2Human Rights Brief, Vol. 9, Iss. 1 [2001], Art. 1http://digitalcommons.wcl.american.edu/hrbrief/vol9/iss1/1such groups to be illegal, it tolerated their presence andhad acquiesced in their depredations and killings in theparticular circumstances of that case.If the United States takes military action againstAfghanistan or any other state, it will be involved in aninternational armed conflict with that state within themeaning of Article 2 common to the 1949 Geneva Con-ventions. As such, the U.S., its allies, if any, and the targetstate will be legally bound to conduct hostilities in accor-dance with IHL, most particularly, the Geneva Conventionsand the laws and customs of warfare contained in theHague Regulations. Unlike UN law, modern IHL is notconcerned with the legality of the resort to force. Rather,its fundamental rules are designed to regulate and restrainthe conduct of hostilities in order to spare the victims ofarmed conflicts. Foremost among these rules are thosedesigned to ensure the immunity of the civilian populationand civilian objects, such as houses and schools, etc., fromdirect attack by requiring the belligerents to distinguishat all times such protected persons and objects from mil-itary objectives and to direct their attacks solely against thelatter. The warring parties, moreover, cannot attack mil-itary targets with impunity. When so doing, they musttake the necessary precautions to avoid or at least minimizeexpected civilian casualties, i.e., collateral damage. Inother words, the U.S. cannot fight terror with terror.Apart from being unlawful, attacks against civilians andtheir morale are totally counterproductive, as the reactionof the American people demonstrates, and wasteful ofmilitary assets.Can the U.S., without violating U.S. and internationallaw directly, target bin Laden in connection with such anattack? The answer is yes. Executive Order 12333 (Order)effectively renounces the use of assassination as an instru-ment of U.S. policy. While so doing, the Order does notdefine the term “assassination,” but it should be understoodas meaning an act of murder undertaken for politicalpurposes. The ostensible purpose of the Order at thetime of its adoption was to preclude the U.S. from killing,for example, a foreign leader of a state with whom the U.S.was not at war. The Order not only prohibits this, but alsothe willful killing of a private person for political pur-poses. This prohibition is consistent with internationalhuman rights law, which prohibits a state from engagingin arbitrary deprivations of life. The legal situation is different during situations ofarmed conflict. Combatants may lawfully target and killenemy combatants, as well as civilians who directly par-ticipate in the hostilities. As these persons are legitimatetargets of attack, their deaths are treated as justifiablehomicide for which the attacker incurs no liability underdomestic or international law. Such killings do not con-stitute assassinations within the meaning of the ExecutiveOrder or IHL, nor would they violate, in principle, the pro-hibition against arbitrary deprivation of life in humanrights law.As previously noted, the U.S. is justified in treating binLaden and the members of his organization as a para-military force which engages in the illegal use of force.Whether they be regarded as paramilitary or merely civil-ians who have assumed a combatant’s role, they are in thecontext of interstate hostilities unprivileged combatantswho are subject, individually and collectively, to directattack. So long as they are not attacked in a “treacherous”manner, which does not include by commando raid, theirdeaths would be lawful acts of war. * Robert K. Goldman is a Professor of Law and Co-Director ofthe Center for Human Rights and Humanitarian Law at theWashington College of Law. This essay was initially prepared forthe Crimes of War Project, and is available on their website athttp://www.crimesofwar.org/expert/attack-gold.html.4Certain Legal Questions, continued from previous pageWhen so doing, they must take thenecessary precautions to avoid or at leastminimize expected civilian casualties . . .the U.S. cannot fight terror with terror. The Human Rights Brief is profoundly saddened by the incomprehensibleevents of September 11, 2001.We respectfully offer our thoughts, prayers, and heartfelt sympathy to all of those who have been affected by this unspeakable tragedy.Moreover, we extend our deep gratitude to the firefighters, police officers, and emergency workers who serve this nation.3Goldman: Certain Legal Questions Raised by the Septermber 11th AttacksPublished by Digital Commons @ American University Washington College of Law, 2001

Certain Legal Questions Raised by the Septermber 11th Attacks

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Certain Legal Questions Raised by the Septermber 11th Attacks

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