Dalton, William

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VPanel ICommentary—Jus ad BellumWilliam Dalton1note with interest and some curiosity that the two presenters for this panelemploy a UN Charter paradigm when discussing the war on terrorism. Theinherent right of collective and individual self-defense embodied in customaryinternational law might well be a more appropriate analytical starting pointwhen discussing Operation ENDURING FREEDOM, however. This seems to be afundamental question worthy of debate and discussion. Many of the questionsraised by Rear Admiral Rempt this morning are also of a fundamental nature.Such questions as what is the nature of terrorism, are terrorists lawful combat-ants, do terrorists comply with the law of armed conflict; do they wear a distinc-tive uniform, are they under military command, are all questions of greatimport as the United States prosecutes this Global War on Terrorism.In my view, terrorists do not qualify as lawful combatants. Instead, they areunlawful combatants and international thugs. Given this starting point, whyare nations constrained in pursuing and eliminating international terrorists?Why are preemptive strikes not routinely taken? One basic reason states oper-ate within the framework of international law is the existence and strength ac-corded state sovereignty. The UN Charter prohibits states from engaging in1. William Dalton is a retired Navy captain and now serves as the Assistant General Counsel forIntelligence with the US Department of Defense.E:\BLUE BOOK\VOL 79 TERROR\VENTURA FILES\VOL 79 BB TERROR 11_18_03.VPThursday, April 28, 2005 8:21:25 AMColor profile: DisabledComposite  Default screenaggressive wars against one another.2 Numerous mutual agreements exist pur-suant to this same charter that recognize, with the exception of variationsof self-defense, that the Security Council is the only organization that mayauthorize the aggressive use of force. This inability to use aggressive force,properly or improperly, constrains how states respond to international terror-ism. This is quite an interesting dilemma; one almost certainly not consideredwhen the Charter itself was written.When looking at the Caroline Case, Secretary Webster was really applying adomestic concept of self-defense—the defender having his back to the walland having to respond immediately.3 Groups engaging in terrorist acts againstthe United States need time to plan, to organize, to mount such attacks.When applying the imminency requirement necessary for anticipatory self-defense to international terrorism, there must be a lessening of the immediacyof the threat. In other words, the requirement to have an immediate threat be-fore anticipatory self-defense can be invoked must be moderated.On a different matter, in looking at the close relationship between theTaliban and al Qaeda, it is clear that a mutual dependency existed betweenthe two organizations. Each of these organizations enjoyed a mutual benefitfrom the other. The Taliban enjoying the purchasing power of al Qaeda fundsand al Qaeda enjoyed the safe haven of Afghanistan provided by the Taliban.In order to allay the threat presented by al Qaeda it was necessary to prose-cute the Taliban as well because as long as the Taliban provided safe haven toal Qaeda, al Qaeda continued to be an imminent threat to the coalition part-ners. So it was as a matter of military necessity in applying anticipatory self-defense that action was undertaken against the Taliban. In my mind, thismade the Taliban a perfectly legitimate target. Note also, that this analysis ap-plies to the current situation with Iraq. The key here is that of necessity. Atsome point, it will become necessary to respond to the Iraqi regime. At somepoint the threat will be so imminent and so serious that the internationalcommunity will have to respond. Clearly then, the key to the overall war onterrorism is this notion of imminency and the exercise of the extraordinaryright of self-defense.138Panel I Commentary—Jus ad Bellum2. Article 2(4) of the United Nations Charter prohibits the aggressive use of force by memberstates; Article 51 recognizes the customary international law right of self-defense.3. See R.Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT’L L. 82 (1938).E:\BLUE BOOK\VOL 79 TERROR\VENTURA FILES\VOL 79 BB TERROR 11_18_03.VPThursday, April 28, 2005 8:21:25 AMColor profile: DisabledComposite  Default screen

Panel I Commentary - Jus ad Bellum

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Panel I Commentary - Jus ad Bellum

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