World Trade Center, New York, Tuesday, Sept. 11, 2001. © Anna Norris, 2001

The purpose of this short essay is to examine the impact of the September 11 events and their aftermath on the international legal system as a whole. In this, as with every other aspect of September 11, one is daunted by the avalanche of writings and opinions on the subject that has swamped the world in the last year; whatever one writes may seem rather trite and "déjà vu". Yet, reiterating the obvious, however banal it may sound, can still be useful as a reminder of basic premisses, particularly when they are ignored by some, not to say by many.

Obviously, in their design and scale, the September 11 events were horrendous and they precipitated spectacular reactions; all of which will undoubtedly leave an indelible mark on the international legal system. Still, one has to keep a sense of proportion.

In the United States, one keeps hearing with reference to these events such qualifications as "a defining moment", "a turning point" or "a system change". But were the events so unique and conceptually unpredictable as to deserve such qualifications?

In fact, they were not.

A foretaste of these tragic events was provided by the earlier attack against the World Trade Center, by the uncovered conspiracy to blow up the New York tunnels and the UN building, as well as by the Oklahoma City terrorist attack. Each of these events or planned events could have led, under different circumstances, to a catastrophe of a magnitude similar to that of September 11.

Moreover, we have been reading for decades about the possibility of nuclear terrorism, of groups of terrorists or mercenaries hijacking states (as happened recently for a short while in the Comoros Islands) and other such scenarios. But these scenarios were perceived as moot intellectual hypotheses, because of their very low statistical probability. We know, however, that an event with a statistical probability, as infinitesimal as it can be, will occur at one point or another, however distant it may be.

Still once it happens, it produces a "shock of recognition". One recognises in one’s guts what one may have intellectually perceived, but has not palpably visualised and realized what it actually signifies. A shock of recognition is very important in that it literally "brings home" to the collective psyche, as an immediate reality, what may have existed until then merely as an esoteric hypothesis verging on science fiction.

Another such shock of recognition - where the parallels are striking, and can help us put the long-term effects of September 11 in perspective - was provided by Chernobyl. Everybody knew that a nuclear incident could happen, but only when it happened did the shock of recognition take place, and everybody thought that it would give rise to a serious system change. More than fifteen years later, has it done so?

Accommodating the Attacks Within International Law

Coming back to September 11, these events, however tragic and traumatic, have, like Chernobyl, to be put in perspective; and for us this means that they have to be put in legal perspective – in other words they have to be situated within or in relation to the international legal system.

Can they be processed through the system, i.e. apprehended, comprehended and dealt with by the system? This would still be the case even if these events, by their significance and scale, constituted an important precedent in the evolution of the system. Or, and this the other alternative, are these events so unique as to be indigestible by the system as it stands, and hence call for a "system change": a shift not in the details of implementation and specification, but in the parameters of the system as a whole?

One gets the impression in the United States that it is the latter case that obtains; that all the rules and institutions of international law have to be reconsidered and reconfigured through the prism of September 11, even if this radical revisionism is presented sometimes in the guise of interpretation.
I personally take strong exception to this latter attitude, first and foremost because the solutions it comes up with ride roughshod over the international legal system, so as to render it - this system, which is already imperfect and frail enough - completely unworkable, and risk producing the very anarchy that one of the declared purposes of combating terrorism is to repel. Moreover, there is no need for such a reconfiguration. The events of September 11, if characterized and handled correctly within the system, would not only receive a better response or remedy, but would also contribute to strengthening the system and developing it for the future.

We should not go off on the wrong tangent. It is submitted that even the response to September 11, in spite or perhaps because of the ambiguity which surrounded its legal justification, can withstand different legal interpretations; and that international lawyers, as a corporation, should adopt those interpretations which cohere with the international legal system and tend to strengthen it or, minimally, which would do least damage to its structure, rather than play with so-called "inventive" or "imaginative" new solutions, which would undermine the system and ultimately bring down its whole structure.
In what follows, proceeding by successive approximations, an attempt is made, through a short series of questions, to develop and illustrate the above line of reasoning.

A Crime, Not an Act of War

The first query concerns the characterization of the events of September 11. There are here two contending approaches, with two consequent regimes of response. The first characterization is that these events constituted a criminal enterprise calling for a "law enforcement" approach in the sense of criminal prosecution and punishment of the individual perpetrators. The other characterization is that they were "acts of war", bringing into play the law of war, with both its branches: the jus ad bellum and the jus in bello.

Of course, the legal consequences of these two characterizations are very different, and particularly as concerns the role of international law in both. The first situates the events in a micro-analytical setting, dealing with individuals or groups of individuals, calling on the appropriate institutions of national law in the first place, with the back up of those international law institutions which go with them: crime prevention and prosecution, social defense, respect of human rights, judicial cooperation, etc.; while the second situates them in a macro-analytical setting of belligerent relations between collectivities, calling directly on the institutions of the international law of war. Obviously, when one deals with micro settings, one has to use a microscope and be very precise in directing repressive action to particular individuals, while dealing with macro settings calls for a telescope and opens the way to large-scale military action.

Can we really call these events or the reaction to them "war" as they are called rhetorically in the US (the "war against terrorism")? One can perceive "war on terrorism" in the same way as "war on poverty". But is it war in the legal technical sense? Michael Howard, who is not a lawyer but a military historian, has shown very eloquently in a short article in Foreign Affairs entitled "What’s in a name?" the fallacy of such a misnomer, and the great dangers with which it is fraught.¹

Can there be a war, in the formal legal sense, between a state and a transnational criminal group or organization? Doesn’t this confer on such a group the dignity of subject of international law? And with what implications? If criminals are considered subjects of international law, the law of war becomes applicable to them in its entirety, including the fundamental principle of the jus in bello which is that of the equality of the parties, as well as the status of prisoners of war for captured combatants, and impunity for participation in hostilities and for acts of war which are not prohibited by the law of armed conflict. Moreover, wouldn’t that privatise war, and take us back to the days before Grotius? Would the international legal system survive such a reconfiguration or are we to invent a completely new one?

It is submitted that it is both legally not possible to consider these events as war, and, as a matter of policy, very unwise, since it would cause incalculable harm to the international legal system. (When it comes to the US reaction, the issue is further complicated by the evaluation of the degree of implication of Afghanistan, or the de facto regime of the Taliban, in the events of September 11, on which more later).

The Legal Basis of the US and International Reaction

The second query is, if the September 11 events are not considered war in the technical legal sense, what is the legal basis of international action and the US reaction to these events?

The sense of outrage that was felt throughout the world as a result of September 11 was reflected in the Security Council resolution of 12 September, the day following these events, and later on Resolution 1373 of 28 September, both of which characterize the events as constituting a "threat to international peace and security", opening the way to the application of collective measures under Chapter VII of the UN Charter (art. 41 and 42). And a real threat it was indeed. In this respect, I totally adhere to their characterization by Michael Reisman² as "the shared perception of a common danger, not simply to individual states, but to a system of world public order". But Michael Reisman falls into contradiction when eight lines later he concludes from this shared perception of common danger that the proper reaction to it is a "war of self-defense", meaning an individual reaction rather than a collective, i.e. social, measure; self-defense, including collective self-defense, being an individual rather than a social use of force, which defends an individual victim rather than society as such.

Self-defense is an exception to the comprehensive prohibition of individual resort to force, controlled and limited to the specific circumstances which justify it; while social defense, in the sense of criminal law, is a standing option and indeed a permanent function of organized society. This is why the threshold of intervention in the name of social defense is much lower than the threshold in self-defense, which is an exception to a general peremptory rule, enshrined both in the UN Charter and general international law.

The reference to the right of individual or collective self-defense in the preamble of these resolutions does not imply an espousal or ratification by the Council of the US characterization of these events as an "armed attack" in the meaning of Article 51; and how could it have been on September 12, before it was known who had perpetrated the acts, and with what help? This reference was merely a "without prejudice" clause, in case the conditions of exercising self-defense were subsequently revealed to be fulfilled. On September 12 this was not yet the case. So the right of self-defense was preserved for such an eventuality. That’s all.

The increasingly revealed evidence of al-Qaeda’s role and of the Taliban regime’s involvment (thus permitting the attribution of the attack to a state) renders this debate rather moot (i.e. whether we are dealing with an armed attack in the meaning of Article 51 of the Charter or with a common threat to international peace and security). But it is not totally moot when it comes to examining the limits of permissible action: against whom (ratione personae)? Where and how far (ratione loci)? And for how long (ratione temporis)?
Self-defense is contextual, exercised against a specific "armed attack" emanating from a state or a subject of international law, and it ends with the repelling of that attack and the prevention of its continuation, if it has a continuous character. Self-defense cannot go beyond that.

There is a great difference between repelling an attack against the United States from Afghanistan and preventing its continuation or its threatened imminent repetition, on the one hand, and fighting terrorism or terrorist groups in general, on the other. The use of force in pursuing the latter task cannot be justified as self-defense under any interpretation of that concept, however stretched it may be. And after all, is force, whether individual or social, the best first way of combating terrorism? I do not think so.

The Response of the United Nations, and its Limits

Of course, once the harm is done and the crime perpetrated, repression has to follow suit, by the use of legal force if need be. The immediate reaction to the September 11 events can be seen within this context. Indeed, Security Council Resolution 1373 of 28 September 2001 comes nearest to the declaration of an "international state of emergency" in the face of these events, establishing a temporary regime under Chapter VII to take measures against terrorism in this particular emergency. But it should not be seen as doing more than that, notwithstanding contrary contentions. Particularly, this temporary regime is not sustainable for the duration, for at least two reasons; one of a general nature relating to the limits of Security Council powers, the other particular to "terrorism":

1. The Security Council cannot act under Chapter VII in the abstract. In other words, it cannot impose obligations on states and create subsidiary organs to monitor and assist in their fulfillment, except as measures for the maintenance or the reestablishment of international peace and security in a specific situation, which it would have characterized beforehand as "a threat to peace, a breach of peace or an act of aggression." This characterization is indispensable for opening the way to the application of mandatory collective measures. Such measures have thus always to be pegged to a particular crisis or situation. Notwithstanding the seemingly general language of resolution, we have to recall that the crisis situation initiated by the events of September 11, and characterised by the Security Council as constituting "a threat to international peace and security," was not limited merely to their aspect of being attacks against the United States, but stemmed more from the reach and capacity for harm of international terrorism that was revealed by these events, and which poses an acute generalised threat to world public order at large. The measures taken by the Security Council were intended to respond to this larger aspect of the crisis, with a view to containing and eventually eliminating this generalised threat, which probably accounts for their generalised language.
   
   
2. More particularly, all international efforts for decades, starting with the League of Nations and continuing in the United Nations, to draw a comprehensive convention against terrorism (but not specific acts of terrorism) have hitherto failed, absent a generally accepted and shared legal definition of what is terrorism, a terrorist act or a terrorist group. This is not because of any technical impossibility of formulating such a definition, but because of the lack of universal opinio juris, particularly about the ambit of the proposed crime ratione personae. Roughly speaking, the major powers insist on limiting the crime to private actors, excluding from it state actors; small powers on the contrary insist on including state actors, while some of them would like to exclude freedom fighters.

Without a universally shared definition of the crime, how can there be a coherent and permanent regime for its prevention and suppression? Resolution 1373 itself reveals the same flaw. For while it provides for numerous measures against terrorists and terrorist organizations and for the prevention of terrorist acts and plots, nowhere does it indicate who or what those individuals, groups or acts are, or how they can be identified.

The Proper Role of International Law in Combating Terrorism

What is then the proper role of international law in combating terrorism? I submit that first of all, we should discard the approach of the law of war, which is totally wrong in this context, relying as it does on large scale unilateral use of force, which goes against the fundamental principles and ethos of contemporary international law.

The first task for international law is to bring to a successful conclusion the long-term efforts to produce a comprehensive convention against terrorism. It is true that up to now these decades of effort have remained fruitless. But the shock of recognition produced by the 9/11 events has created a new situation and provided the psychological mobilisation for overcoming the obstacles to reaching a generally acceptable definition. Preferably, such a definition should be exclusively pegged to the acts and their consequences, together with the accompanying intent, regardless of the status or the quality of the actor, as is the case of crime against humanity and genocide.

The convention would then establish tighter networks of international cooperation for preventing, suppressing and prosecuting the newly defined crime of terrorism, not only in terms of obligations of best efforts (obligations de moyen), but also obligations to achieve certain results (obligations de résultat), once we know what we are speaking about. This entails as well creating multilateral institutions to deal more effectively with this subject, and mandating them with the necessary power to do so. The International Criminal Court is the prime example of such an institution, and its jurisdiction could be extended to cover this crime once it is clearly defined. Countries that want to strengthen the role of international law in fighting terrorism should support the court, rather than working to undermine it, as the United States is now doing.

These steps would help to perfect the budding system of individual international criminal responsibility, and would increase the obligations that states have for judicial cooperation and assistance. And that would in turn help push international law further from the concepts and methods of "the international law of coexistence", (as traditional international law was described by Wolfgang Friedmann) - which purports to maintain the coexistence between antagonistic units, assumed to have contradictory interests, playing a zero-sum game through unilateral actions and reactions by individual states (self-help) - towards the more cooperative vision and model of "the international law of cooperation", based on the ideas of common interests and values, and of a common enterprise or action in defending and promoting them.

Finally, it is necessary to recall that even if all these measures are taken, they will not suffice, by themselves, to form an effective strategy for combating terrorism. It is banal to say that we live in a globalized world, and that globalization creates new threats that cannot be contained and controlled within one State. They call for responses at the same level as themselves, meaning that of the international community at large. These threats and entropies are, however, the pathological aspects of globalization. International cooperation in devising repressive strategies within the framework of criminal law deals mainly with the symptoms. But we have to go to the root causes of these symptoms, in other words we have also to increase cooperation in addressing the root causes of terror. What are these? Deep feelings of injustice and oppression, of loss of hope and prospects, resulting from misery, exploitation, the denial of human rights, and great inequalities between and within peoples.

To illustrate by a similar example, there has been no agreement at all for the last thirty years on a minimum price for cocoa. Some Latin American farmers ended up cultivating coke. Fighting drugs is all very well, but at the same time, something has to be done to make it possible for farmers to earn a living on what they would otherwise produce, like cocoa.

In other words, a coherent legal strategy for combating terrorism requires a complementary and mutually reinforcing set of measures – from tightening international cooperation in the prevention, prosecution and suppression of terrorist activities, to long-term cooperative schemes to remedy or at least attenuate their root causes – if it is to lead to the containment and eventual eradication of terrorism.

This is why it is vital, in my submission, that the events of September 11 and the reactions to them, past and particularly future, by the US as well as by the international community, be perceived along the lines, and kept within the confines of the interpretation suggested above, which is consistent with the existing structure of international law.. By so doing we would strengthen the role of international law in combating terrorism, and the role of law in the international community in general.

The alternative course of resort to unilateral force (whether by one state of a coalition of states), pressuring and threatening other states and even acting on their territory without their consent, in the name of combating terrorism - apart from its blatant violation of some of the most fundamental principles of international law - can only lead to disastrous results. It would nurture a widening and increasingly destructive cycle of violence on a global level, of which nobody can foresee the end or the full consequences, apart from the total erosion of the international legal order, and a gradual descent into anarchy at the hands of those who are supposedly trying to defend world order.

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² "In Defense of World Public Order", AJIL (2001), vol. 95, no.4, p. 833 at 834.