Terrorist Threats Challenge the Current

¶ … terrorist threats challenge the current international legal framework? Should the current framework of international humanitarian law be altered?

International law" is a phrase that has been used often in the post-September 11 era, and in most cases the phrase is employed in relation to the activities of terrorists, or, to the activities of governments seeking to prevent terrorist actions against their citizens and institutions. In the context of post-September 11 terrorism, the world clearly has changed and continues to change; citizen safety is a concern on a global level as never before, and the use of force against terrorism is at an all-time high. What laws apply in these stressful, dangerous times?

This paper will review existing international law, challenges to those laws, how countries have responded to terrorism vis-a-vis the implementation of new laws, the justifications used by countries to side-step existing laws, and more.

What is the Current Framework of International Law regarding Terrorism?

On November 15, 2004, the Vice President of India, Bhairon Sing Shekhawat said there is "an urgent need to develop strong international law that comprehensively addresses the issue of terrorism" (PTI, 2004). Speaking before a conference on international law in New Delhi, Shekhawat stated that terrorism is "the biggest threat" to world peace and to democracy. And while "codifying such a law," he explained, "there should be a guard against any selective definition of terrorism, as international peace demands solutions to all forms of terrorism, including proxy war."

In truth, there are already laws against what is commonly known as "terrorism" on the books, called international treaties, "conventions," and "accords." According to the Interights organization in London, there is no "accepted definition of 'terrorism' (33), though the issue has long been the focus of international attention" (Duffy, 2001). The Title of the Interights report is "Responding to September 11: The Framework of International Law.'

There are "no less than nineteen international conventions dedicated to terrorism in various forms," Duffy continues. There are problems with some of the conventions against terrorism, though, and those issues pop up when the state on whose territory a terrorist-related crime is committed has not bee incorporated into domestic law. The United States has enacted legislation incorporating international laws against terrorism into federal law; it is called the "Antiterrorism Act of 1990."

Section 2332 (b) of the act, according to Duffy, "covers attempts and conspiracy in connection with the killing of a national of the United States by an accused person outside the United States at the time..." And Section 2332 - "...reaches an accused 'outside the United States' who 'engages in physical violence with intent to cause serious bodily injury to a national of the United States; or with the result that serious bodily injury is caused to a national of the United States."

The Interights report (36) points out that international law allows that there are several states where criminal jurisdiction may be exercised, in the event of a terrorist attack: the state where the crimes occurred (the U.S., in the case of September 11, 2001); the state of the national of suspects (Saudi Arabia); the state of nationality of the victims (in the case of September 11 killings, there were approximately 50 nationalities represented in the World Trade Center attack); "and, for certain serious international crimes, all states, based on universal jurisdiction."

In the event that national courts prefer not to assume the role of investigating and prosecuting criminals connected with terrorist acts, other jurisdictions may become involved. One, the Security Council of the UN, under Chapter VII of the UN Charter, "has broad powers to take measures for international peace and security." Also, there is the International Court of Justice (ICJ), a court associated with the United Nations, and the International Criminal Court (ICC). According to its charter statement - the "Rome Statute of the International Criminal Court" - this court was set up on July 17, 1998, by a coalition of 120 states participating in the "United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court."

Any state may - utilizing indictments, a "concise statement of the facts," and arrest warrants - bring alleged terrorist criminals to trial before the ICC. There are also "cooperative" procedures (40) that Duffy alludes to, in which several states may cooperate with the ICC (or the ICJ, in the case of the Lockerbie crime where a civilian airliner was blown out of the sky by a bomb on board) to bring criminals to trial for terrorist acts.

UN anti-terrorism Conventions (http://www.un.org/English/Terrorism.asp):1) "Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents"; 2) "International Convention against the Taking of Hostages"; 3) "International Convention for the Suppression of Terrorist Bombings"; 4) International Convention for the Suppression of the Financing of Terrorism"; 5) "Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation"; 6) "Convention on the Physical Protection of Nuclear Material"; 7) "Protocol on the Suppression of Unlawful Acts of Violence at Airports"; 8) "Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation"; 9) "Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf"; 10) "Convention on the Marking of Plastic Explosives for the Purpose of Detection"; 11) "Arab convention on the Suppression of Terrorism"; 12) Convention of the Organization of the Islamic Conference on Combating International Terrorism"; 13) "European Convention on the Suppression of Terrorism"; 14) OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance"; 15) "OAU Convention on the Prevention and Combating of Terrorism"; 16) "SAARC Regional Convention on Suppression of Terrorism"; 17) "Treaty on Cooperation among States Members of the Commonwealth of Independent States in Combating Terrorism."]

Terrorism and the Threat of Terrorism Challenges International Law

Fighting Terrorism" as Justification to Wage War on Iraq

The Bush Administration's strategy in "attacking terrorism" has raised a great many serious questions with reference to existing international law; albeit few questioned America's attack on the Taliban in Afghanistan, the first obvious instance of the U.S. challenging international law - using the threat of terrorism as justification - was the invasion of Iraq itself. Though the administration tried to muster support from the international community, and in particular, the United Nations, little support was forthcoming (aside from loyal allies like England, Australia, etc.).

It was not surprising that the UN Security Council decided not to sanction an invasion of Iraq by the U.S., since UN weapons inspectors were in Iraq, trying to do the work they were assigned to do under the UN authority; namely, they were in Iraq in search for hidden "weapons of mass destruction" (WMD), and though they had not found any, they were still searching, and the UN was urging the Bush Administration to allow the inspection process to play itself out, prior to the U.S. launching an attack on Iraq.

Its brutal dictator's notorious cruelty notwithstanding, Iraq was a sovereign nation, and Article 2(3) of the UN Charter states: "All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, shall not be compromised." Meanwhile, using terrorism as a justification to brush aside international law, the U.S. launched a major public relations campaign attempting to link Saddam Hussein to the terrorists responsible for the September 11 attack on the U.S., and attempting to show that, in addition to WMD, Saddam had - or was in the process of developing - an even more sinister arsenal, nuclear weapons.

Meanwhile, on the subject of the "challenging of international law," the respected journal Editor & Publisher published an article (Hanley, 2003) detailing the questionable - even flatly false - claims made by Powell in his appearance before the United Nations Security Council on February 5, 2003, shortly before the U.S. attack on Iraq began. The article in Editor & Publisher, written by Associated Press correspondent - and 2000 Pulitzer Prize winner - Charles J. Hanley, consists of excerpts from his own 2,500-word article on Powell's Feb. 5 speech.

Powell Assertion Number One: Among the most headline-grabbing assertions Powell made in that U.N. speech was his report that "Saddam Hussein is determined to get his hands on a nuclear bomb. He is so determined that he has made repeated covert attempts to acquire high-specification aluminum tubes from 11 different countries even after inspections resumed." But that statement was based on inaccurate data, according to an article on CBSNews.com (Feb. 4, 2004), former CIA Iraqi weapons analyst Greg Thielmann (and foreign service officer for 25 years) who, at the time of Powell's ascension as Secretary of State, was acting director of the Office of Strategic Proliferation and Military Affairs.

In January, 2002, "Thielmann had reported to Secretary Powell's office that they (his CIA staff) were confident the tubes were not for a nuclear program," the CBS article stated. And a year later, when the administration "began building a case for war," and the issue of the tubes came up again, Houston Wood, who worked on the Oak Ridge analysis of the tubes, was "flabbergasted that people were still pushing that those things might be centrifuges" for nuclear production; "I was angry at that," Wood, who is one of the world's authorities on uranium enrichment by centrifuge, added.

Powell Assertion Number Two: In his Feb. 5, 2003 speech to the U.N., Powell said: "We have no indication that Saddam Hussein has ever abandoned his nuclear weapons program." But in October, 2002, in his memo to the White House, CIA Director George Tenet voiced "strong doubts about a claim President Bush" was about to make in the State of the Union address "that Iraq was trying to buy nuclear materials" from Africa. And on July 24, 2003, Spain's Foreign Minister, Ana Palacio, an ally of the U.S., said their was "no evidence" prior to the U.S. attack on Iraq of a nuclear bomb program by Saddam, according to the Hanley article in Editor & Publisher.

Powell Assertion Number Three: Powell told the U.N. he had proof that Saddam was deploying "Contamination Vehicles" associated with chemical weapons on at least two sites. Those alleged contamination vehicles turned out to be water and fire trucks, according to what Norwegian U.N. inspector John Siljeholm told the AP on March 19, 2003 (Hanley, 2004).

Powell Assertion Number Four: Powell said in his U.N. speech that there were believed to be portable "biological weapons factories" on trucks and train cars. After the U.S. invasion, "no trace of biological agents" was ever found on any truck or train cars, Hanley reported.

Powell Assertion Number Five: Powell asserted before the U.N. that 8,500 liters of the deadly agent anthrax had been produced by Iraq, but none has been found post-invasion, Hanley writes.

And so, the important point here is not a criticism of Colin Powell, per se, but rather, the great lengths a superpower nation will go in the "fight against terrorism" - even if the justification for aggression is on shaky ground. This is how September 11, 2001, and the threat of more terrorism, has affected the rule of law on an international playing field.

Terrorism's Effect on Humanitarian Law

One of the universally respected international humanitarian laws, observed by members of the United Nations, is the Geneva Convention, adopted by most civilized nations on Earth in 1949, in Geneva, Switzerland, following the atrocities and genocide of WWII. Article 25 of the Geneva Convention: "Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health."

Meanwhile, following the invasion of Iraq, and during the occupation of Iraq, the U.S. military conducted a number of actions against Iraqi prisoners of war (who were later identified by the military as "suspected terrorists") that clearly crossed the line from interrogations into torture. The abuses took place in the Abu Ghraib Prison in Iraq. On May 24, 2004, pictures became available (on the Internet and throughout the world on television) showing such things as American soldiers laughing over dead Iraqis "whose bodies had been abused and mutilated" (Barry, et al., 2004). According to an investigative article in Newsweek International, there were also images of U.S. troops "forcing Iraqis to masturbate," and soldiers "sexually assaulting Iraqis with chemical light sticks." Further, the photos showed "a hooded man standing naked on a box, arms outspread, with wires dangling from his fingers, toes, and penis."

These acts of torture certainly captured the attention of nations all around the world, and the investigation by Newsweek shoed that "as a means of pre-empting a repeat of 9/11, Bush, along with Defense Secretary Rumsfeld and Attorney General John Ashcroft, signed off on a secret system of detention and interrogation that opened the door to such methods." By doing so, Bush, Rumsfeld and Ashcroft "overrode the objections of Secretary of State Colin Powell and America's top military lawyers."

According to "internal government memos" obtained by Newsweek, White House lawyer Alberto Gonzales wrote a lengthy memo to Bush, stating that the "war against terrorism is a new kind of war," and as such, "places a high premium" on the ability of the U.S. military to "quickly obtain information from captured terrorists..." In his opinion, Gonzales wrote, "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

In other words, international humanitarian law was being ignored aside by the U.S., because its provisions against inhumane treatment of prisoners were "quaint." Article 99 of Geneva Conventions: "No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused."

Should the Framework of International Law be altered? Clearly, the new rules of engagement and rules of deportment by American soldiers put in place because of the threat of terrorism are not within the bounds of international humanitarian law. Referring back to UN Article 2(3), in which it provides that international disputes shall be settled "by peaceful means in such a manner that international peace and security..."not be compromised, a recent article on the Europe Intelligence Wire (January 17, 2005) reported that Bush "has signed a series of orders authorizing commando groups to conduct covert operations against suspected terrorist targets in as many as ten nations in the Middle East," including Iran.