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Book Review: Terrorism, War and International Law (Myra Williamson)

This occa­sion­al series will high­light the book anno­ta­tions that con­sti­tute the back pages of every issue of the NYU Jour­nal of Inter­na­tion­al Law and Pol­i­tics.  We are begin­ning with this review of Myra Williamson’s Ter­ror­ism, War and Inter­na­tion­al Law: The Legal­i­ty of the Use of Force Against Afghanistan in 2001, because it rais­es the cru­cial ques­tion of the right of States to use force in self-defense against non-State actors.  This issue sits in the back­ground of much of the current debates about the use of force, most recent­ly in Pro­fes­sor Alston’s Tar­get­ed Killings report.

By Gra­ham F. Dumas

Myra Williamson’s Ter­ror­ism, War and Inter­na­tion­al Law: The Legal­i­ty of the Use of Force Against Afghanistan in 2001 comes at a time when the con­flict in Afghanistan is return­ing to the fore of U.S. for­eign pol­i­cy and as the fight against ter­ror­ism con­tin­ues to expand. Yet many of the legal ques­tions sur­round­ing this con­flict were sim­ply glossed over at the time of the invasion and have not yet been sat­is­fac­to­ri­ly resolved.

Bas­ing her argu­ment main­ly on legal his­to­ry, Williamson asserts that the use of force against Afghanistan could not be legal­ly con­sid­ered self-defense accord­ing to the U.N. Char­ter because there was no armed attack for the pur­pos­es of Arti­cle 51, because the Secu­ri­ty Coun­cil did not autho­rize uni­lat­er­al force in Res­o­lu­tion 1368, and because Al Qaeda’s actions could not be attrib­uted to the Tal­iban. Sim­i­lar­ly, the author argues that the inva­sion of Afghanistan was not legal under cus­tom­ary inter­na­tion­al law because it was nei­ther nec­es­sary nor pro­por­tion­ate, and there was no imme­di­ate threat of attack in the weeks fol­low­ing Sep­tem­ber 11.

In vig­or­ous­ly assert­ing the ille­gal­i­ty of the inva­sion of Afghanistan, Williamson rais­es a num­ber of inter­est­ing points
and pro­vokes a great deal of thought, espe­cial­ly with respect to the many weak­er links in the argu­ment for the invasion’s law­ful­ness. As she notes, the Inter­na­tion­al Court of Jus­tice (ICJ) has held on numer­ous occa­sions that Arti­cle 51 applies only to armed attacks by states, and the link between Al Qae­da and the Tal­iban is indeed ten­u­ous, espe­cial­ly under a clas­si­cal inter­pre­ta­tion of the law. Par­tic­u­lar­ly insight­ful is the study of the opinio juris of var­i­ous NATO mem­bers with respect to that organization’s dec­la­ra­tion that an armed attack occurred; the author sug­gests that what appeared to be a unan­i­mous dec­la­ra­tion that Sep­tem­ber 11 was suf­fi­cient to trig­ger the inher­ent right of self-defense was in fact any­thing but. Despite these effec­tive points, Ter­ror­ism, War and Inter­na­tion­al Law is a dis­ap­point­ing and ulti­mate­ly unsuc­cess­ful effort which leaves out more than it includes, treats as fact sev­er­al high­ly con­tentious claims nec­es­sary to sup­port the main the­sis, and often fails to address the post-Afghanistan era’s most press­ing legal ques­tions.

While Ter­ror­ism, War and Inter­na­tion­al Law endeav­ors to tack­le in depth an admirably wide range of prob­lem­at­ic issues with­out over­whelm­ing the read­er, it often feels abbre­vi­at­ed; indeed, the lacon­ic dis­cus­sion in its 277 pages belies the promise of com­pre­hen­sive­ness offered by its over­ly grand title. The sec­tion on Afghanistan, on which the book might be expect­ed to focus, is par­tic­u­lar­ly frus­trat­ing in its brevi­ty, while Williamson spends a great deal of time at the begin­ning of the book defin­ing ter­ror­ism, artic­u­lat­ing the his­to­ry of armed con­flict, and pars­ing trends in ter­ror­ist attacks. This infor­ma­tion is, of course, use­ful, but its pre­sen­ta­tion is rather dis­or­ga­nized and, although it is tacked onto the main the­sis towards the end of the book, the strength of its con­nec­tion with the rest of the mate­r­i­al is less than ade­quate­ly demon­strat­ed.
Williamson’s analy­sis of inter­na­tion­al cus­tom on the use of force is often stilt­ed and inflex­i­ble, and the author is unwill­ing to adapt such norms to incor­po­rate post-Sep­tem­ber 11 prac­tice, or even to con­sid­er the not insub­stan­tial argu­ments for doing so. She sim­ply assumes with­out ade­quate expla­na­tion that indi­vid­ual attacks per­pe­trat­ed by the same orga­ni­za­tion as part of the same cam­paign should be con­sid­ered legal­ly dis­crete acts, thus pro­hibit­ing as ille­gal­ly pre­emp­tive all self-defense mea­sures after the first attack is con­clud­ed. Yet the cam­paign waged by Al Qae­da against U.S. inter­ests could rea­son­ably be analo­gized to tra­di­tion­al armed con­flicts con­sist­ing of mul­ti­ple attacks, in which the pro­hi­bi­tion on pre­emp­tive self-defense essen­tial­ly van­ish­es with the first strike. This argu­ment is at least strong enough to war­rant con­sid­er­a­tion and dis­cus­sion in this book, espe­cial­ly in light of its sig­nif­i­cance for the poten­tial devel­op­ment of inter­na­tion­al law; its omis­sion is a glar­ing fault that can­not be ignored.

While Williamson’s inter­pre­ta­tion is not wrong per se, she fails to deliv­er a com­pelling pol­i­cy ratio­nale in sup­port of it. She argues that the U.N. Secu­ri­ty Coun­cil should be respon­si­ble for mil­i­tary counter-ter­ror­ist oper­a­tions, leav­ing only police actions to indi­vid­ual states—certainly not an unwor­thy goal. But the author gives lit­tle thought to the poten­tial impact of this restric­tive read­ing, which would make the use of force in self-defense against ter­ror­ist threats ille­gal. Although enabling states to claim self-defense in Sep­tem­ber 11-type sit­u­a­tions would undoubt­ed­ly expand the law on the use of force, it would also bring such mil­i­tary action into the penum­bra of rec­og­nized human­i­tar­i­an law. This would serve to under­mine many of the argu­ments based on the irreg­u­lar­i­ty of such con­flicts that have been advanced for deny­ing com­bat­ants their rights under the Gene­va Con­ven­tions. Fur­ther, Williamson fails to appre­ci­ate the posi­tion that, even if such legal restric­tions on state action did exist, gov­ern­ments face over­whelm­ing inter­nal polit­i­cal pres­sure to resort to force against large-scale ter­ror­ist threats. Giv­en this per­haps irre­sistible ten­den­cy, human rights may be served bet­ter by rec­og­niz­ing the legal­i­ty of self-defense in such sit­u­a­tions and then hold­ing states to a high­er stan­dard in ensu­ing con­flicts for the treat­ment of civil­ians and com­bat­ants alike.

Williamson is often con­tent to take mate­ri­als sup­port­ing her argu­ment at face val­ue, where­as she applies more care­ful analy­sis to dis­tin­guish those that might lend more sup­port to oppos­ing view­points. The author pro­vides sig­nif­i­cant detail to sup­port the argu­ment that NATO’s invo­ca­tion of Arti­cle V can­not be tak­en as unan­i­mous opinio juris that the Sep­tem­ber 11 attacks were suf­fi­cient to allow self-defense mea­sures. Yet she makes almost no men­tion of the Taliban’s close rela­tion­ship with Al Qae­da when dis­cussing the ques­tion of attri­bu­tion. This is an extreme­ly impor­tant issue for the present-day con­tent of the law, as the nature of the ties between a host state and a ter­ror­ist orga­ni­za­tion may play a major role in deter­min­ing the respon­si­bil­i­ty of that state in the event of a large-scale attack. Even if one dis­agrees with this high­ly con­tentious point, post-Afghanistan state prac­tice is sig­nif­i­cant enough to war­rant its dis­cus­sion; it should not sim­ply be ignored.

Williamson’s selec­tive inter­pre­ta­tion of Secu­ri­ty Coun­cil res­o­lu­tions is also high­ly sus­pect. Res­o­lu­tion 573, which con­demned as ille­gal a 1985 attack by the Israeli Air Force on Yass­er Arafat’s head­quar­ters in Tunis in response to the  mur­der of three Israeli cit­i­zens in Cyprus, is cit­ed rather uncrit­i­cal­ly on the grounds that it was decid­ed by a vote of four­teen to zero, with the US abstain­ing. In con­trast, Res­o­lu­tion 1368, which con­demned the Sep­tem­ber 11 attacks on the Unit­ed States, is sub­ject­ed to close scruti­ny in order to attack the argu­ment that it autho­rized uni­lat­er­al mil­i­tary action. More detailed pars­ing of the lan­guage and opinio juris for res­o­lu­tions sup­port­ing this book’s the­sis would have gone a long way toward make it more con­vinc­ing.

Addi­tion­al­ly, Williamson ignores coun­ter­ar­gu­ments to the ICJ’s Nicaragua deci­sion and its 2004 Con­struc­tion of a Wall advi­so­ry opin­ion. She relies heav­i­ly on Nicaragua and Wall to argue that, because the Court held that Arti­cle 51 applies only to armed attacks by states, the self-defense claim espoused by the Unit­ed States was ille­gal and could not jus­ti­fy the inva­sion of Afghanistan. There is, how­ev­er, no dis­cus­sion of the terms of Arti­cle 51, which are not explic­it­ly restrict­ed to state action. Nor is any men­tion made of the sep­a­rate opin­ions by sev­er­al judges in Wall and Armed Activ­i­ties on the Ter­ri­to­ry of the Con­go, which ques­tion the premise that Arti­cle 51 applies sole­ly to state actions. As in domes­tic law, sep­a­rate ICJ opin­ions are often the source of devel­op­ing law, and opin­ions diverg­ing so severe­ly from the estab­lished norm can­not sim­ply be ignored; to do so bor­ders on intel­lec­tu­al dis­hon­esty.
Most frus­trat­ing of all is Williamson’s fail­ure to ask the many dif­fi­cult ques­tions raised by the ten­sion between tra­di­tion­al, state-cen­tric inter­na­tion­al law and con­tem­po­rary real­i­ty. What oblig­a­tion do states owe one anoth­er to take mea­sures against known ter­ror­ists oper­at­ing on their ter­ri­to­ry, and what actions may be tak­en against gov­ern­ments that, like the Tal­iban, ignore or even encour­age ter­ror­ist orga­ni­za­tions? The author cites the Arti­cles of State Respon­si­bil­i­ty for the propo­si­tion that respon­si­bil­i­ty for attacks can­not be extend­ed from ter­ror­ists to the gov­ern­ment of the state where they are based. Yet post-Afghanistan state prac­tice may indi­cate oth­er­wise, a fact that, if true, would alter sig­nif­i­cant­ly the pat­terns of respon­si­bil­i­ty estab­lished by the Arti­cles. Such momen­tous pres­sures on exist­ing inter­na­tion­al law are wor­thy of care­ful dis­cus­sion in any treat­ment of this sub­ject mat­ter, even if the author dis­agrees with them entire­ly.

Like­wise, if Nicaragua and Wall con­sti­tute the state of the law for all armed con­flicts, and if to trig­ger Arti­cle 51 it is indeed required that armed attacks be per­pe­trat­ed by states alone, this would leave a size­able gap in the inher­ent right of states to defend them­selves: states may not resort to force in self-defense against exter­nal ter­ror­ist threats, while domes­tic police pow­ers are clear­ly insuf­fi­cient to neu­tral­ize threats of the sort posed by Al Qae­da in Afghanistan pri­or to Octo­ber 2001. This leaves the Secu­ri­ty Coun­cil as the sole guar­an­tor of domes­tic secu­ri­ty in such sit­u­a­tions and thus requires states to cede a tremen­dous and unprece­dent­ed amount of sov­er­eign­ty on a mat­ter that has tra­di­tion­al­ly rest­ed square­ly in the con­trol of states them­selves. So great is this ces­sion of sov­er­eign­ty that it may even con­tra­vene the right of self-deter­mi­na­tion on the part of estab­lished states, turn­ing an essen­tial­ly set­tled ques­tion into a mas­sive con­tro­ver­sy. Thus, post-Sep­tem­ber 11 state prac­tice rais­es seri­ous ques­tions as to the via­bil­i­ty of Arti­cle 51 in man­ag­ing the use of force with respect to ter­ror­ist threats.
It is pre­cise­ly ques­tions like these that are cen­tral to any schol­ar­ly dis­cus­sion of inter­na­tion­al law, ter­ror­ism, and the
use of force, as they rep­re­sent the cut­ting edge on the sub­ject. Williamson, how­ev­er, choos­es to ignore these prob­lems, insist­ing instead on a high­ly for­mal­is­tic inter­pre­ta­tion of the law with­out per­sua­sive­ly artic­u­lat­ing her rea­sons. This is unfor­tu­nate, as much of the legal and polit­i­cal nar­ra­tive has been cap­tured by those in favor of an expan­sive read­ing of the law, lead­ing to a rather lop­sided debate. A more care­ful and rea­soned analy­sis would have been extreme­ly help­ful in map­ping the legal bound­aries of the use of force. Instead, this book is yet anoth­er in a long line that will be accept­ed or reject­ed accord­ing to polit­i­cal per­sua­sion. Above all else, it is for this rea­son that Ter­ror­ism, War and Inter­na­tion­al Law falls far short of its mark.

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