War on Terror and the New International Order

            August/September 2012    
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Legal Issues Related to International
Terrorist Acts and State Support

By Tatiana Waisberg © 2012

(This is an excerpt from the book:
War on Terror and the New International Order
available at Amazon: http://www.amazon.com/War-Terror-New-International-Order/dp/1475262086)

3.1 The Phenomenon of
International Terrorism

Terrorism is essentially an unlawful act of political violence. Similar to other political crimes, the perpetrators may be classified according to their acts, motives, and goals.[1] Yet in international law there is no consensual definition on the essential elements of this crime. Instead, there are sparse regulations of certain acts that are defined as manifestations of terrorism, such as hostage-taking and the use of explosives and other lethal devices in, on, or against various defined public places with the intent to kill or cause serious bodily injury or with the intent to cause extensive destruction of property.

3.1.1 The Rise of
International Terrorism

International terrorism is not a new phenomenon. It has been a matter of concern to the international community previous to the creation of the United Nations. At the end of the nineteenth century, the anarchist movement adopted terrorism as a tactic, "propaganda by deeds," which meant the deliberate targeting of a number of monarchs and heads of state as a means to achieve revolutionary change in the political system. But it was in the era of the United Nations that the term terrorism became highly controversial and amorphous.

The rise of modern international terrorism as an offence having far-reaching international repercussions goes back to 1968, when the fedayeen took their struggle against Israel outside the Middle East and began deliberate targeting >citizens from other countries.[2] Since then, several international instruments regulating the most common methods employed by terrorist groups were adopted.

Before the September 11th attacks, there was no systematic effort to deal with the challenge posed by terrorism. Rather, these international conventions were concluded under the auspices of different international organizations, and most of them came about as a reaction to specific events. In many instances, the terrorism conventions further obscured the meaning of terrorism. The reiterated affirmation of the principle of self-determination of peoples was often interpreted by states as a sort of reservation.[3] In other words, some states argued that the same unlawful act could not be a manifestation of terrorism if it was motivated by the ideals of self-determination and national liberation.

3.1.2 International Terrorism as a Top Concern
in the International Community

The September 11th attacks lead to a dramatic change in the United Nation's counterterrorism efforts. First, it boosted the approval of international conventions that broaden the scope of terrorist acts and deal with the problem of the financing of terrorism. Second, there was unequivocal condemnation of all acts of terrorism as a threat to international peace and security, including those related to the struggle for self-determination. Third, it created a centralized United Nations task force responsible for ensuring coordinated and coherent efforts across the UN system for counterterrorism[4] and, more specifically, a Security Council Counter-Terrorism Committee (CTC)[5] to monitor the implementation of Resolution 1373 (2001)[6] and to increase the ability of states to fight terrorism. Fourth, post-September 11 Security Council resolutions and General Assembly declarations expanded the focus on the phenomenon of state-supported terrorism by including new categories of state assistance to terrorist organizations, such as harboring and allowing terrorists safe haven. Fifth, the Bush administration renewed the United States National Security Strategy (NSS) in September 2002 by launching a number of proactive measures to hit the terrorist wherever they may be, regardless of other states' sovereign prerogatives. The aggressive U.S. counterterrorism foreign policy engendered reactionary rhetoric that accused the superpower of pursuing imperial ambitions in the name of the war on terror.

It will probably take some time for the international community to comprehend the magnitude of the ongoing developments in the counterterrorism field. The recognition of the potential large-scale threat that religious terrorism poses to the international order is arguably the main cause for the quick adoption of new international mechanisms designed to counter the threat of international terrorism.

3.2 Historical Overview

The origins of the word terrorism can be traced to the French Revolution. The system or régime de la terreur of 1793-4 under the leadership of Maximilien Robespierre employed terror as an instrument of governance. Terror, in this historical sense, was to be discriminated, organized by the state, and systematically employed as a means to achieve democracy.[7] The meaning of terrorism, however, went through subsequent mutations until it reached its contemporary trademark-a violent crime perpetrated by subnational groups or nonstate entities for political purposes and directed to a certain target audience.[8]

3.2.1 The Anarchist Movement:
Terrorism and Ideology

In the late nineteenth century, the term terrorism became popular again as the anarchist movement invaded the international political scene. Narodnaya Volya,[9] a precursor anarchist movement, was the first to adopt the Italian republican extremist Carlos Pisacane's[10] theory of "propaganda by deed." The anarchists employed terror as a means to oppose state institutions. Their targets were carefully selected and aimed to produce publicity so as to influence individual revolutionaries and subversive organizations elsewhere. The anarchists were responsible for the assassination of a number of heads of states all over Europe, Russia, and the United States.[11] By the end of the First World War, the movement faded away as its ideology was influenced and later replaced by the ideals of the revolution of October 1917. Eventually, Europe's red terrorists,[12] notorious during the 1980s, were inspired by principles and revolutionary strategies of Marxism-Leninism. Despite some obvious similarities between the jihadists' and anarchists' calls for individual action,[13] their aims are quite different. The jihad is not directed against heads of state, and its justifications, unlike anarchist ideology, are religiously motivated.[14]

3.2.2 Totalitarian States and the
"State of Terror

With the consolidation of totalitarian regimes in the 1930s, the meaning of terrorism returned to its original connotation as dictators, such as Hitler, Mussolini, and Stalin, who employed "terror" as a systematic state policy to fight their enemies. The notion of terrorism as relating to an authoritarian state policy often linked to systematic persecutions and torture later labeled the terrorist organizations' motto against counterterrorism policy, notable for its jargon: "One person's terrorist is another person's freedom fighter."[15]

The idea of state terrorism, however, is at odds with the notion of terrorism as violence committed by nonstate entities. Moreover, the first proposed international definition of terrorism, formed at the 1937 Convention for the Prevention and Punishment of Terrorism[16] and concluded under the auspices of the League of Nations, follows the same premise, as it defined terrorism as "all criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public."[17]

3.2.3 Terrorism and Decolonization

With the creation of the United Nations and the recognition of the right to self-determination of people, subnational groups resorted to terrorism, affecting the decolonization process. Terrorist acts were employed by nonstate actors as an appeal to achieve independence from imperialist states. The term terrorism then started to be manipulated in order to justify acts that would otherwise be labeled as criminal. Groups resorting to terrorism preferred to call themselves "freedom fighters" or "urban guerrillas" instead of terrorists, a more pejorative term. The semantic obfuscation overshadowed the prospect of a consensual definition, as the meaning of terrorism varies with ideology.[18]

3.2.4 International Terrorism and

The internationalization of terrorism is commonly related to the terrorist activities of the Palestinian Liberation Organization (PLO) after 1968, when the fedayeen took their struggle against Israel outside the Middle East.[19] Since then there has been a gradual regulation of certain international terrorist acts under specific conventions, which, however, lack unequivocal condemnation of terrorist acts, regardless of motives. The Cold War politicalization of terrorist acts was a direct consequence of the struggle for self-determination, and international terrorism was commonly viewed as the weapon of choice of the weak and oppressed against powerful states until the 1990s with the appearance of religiously motivated terrorism.[20]

Palestinian terrorist organizations' terrorist activities in the late 1960s shaped the political discourse related to the internationalization of terrorism until the mid-1990s.[21] Moreover, the initial perception was that only terrorist attacks against traditional international targets, such as transnational airplanes and diplomats, constituted acts of international terrorism, while domestic terrorism, such as the IRA's activities in the UK and the ETA's in Spain, was considered to be beyond the reach of international law.[22] It was only after the September 11th attacks that the Security Council blurred the distinction between national and international terrorism to condemn terrorist acts on the whole, referring to domestic terrorist acts related to internal conflicts in Colombia[23] and Russia[24] as threats to international peace and security.[25]

3.2.5 International Terrorism after
September 11, 2001

The September 11th terrorist attacks against the United States disrupted the logic of ethnic-nationalist terrorism. Religiously motivated international terrorism, unlike national liberation-motivated international terrorism, lacks concrete goals. Although, al-Qaeda's platform keeps some of the signs of modern terrorism, such as the publicity, the indiscriminate targets, and the terrorizing factor, its jihad is hardly consistent with the model of wars of national liberation. Al-Qaeda, unlike movements of national liberation, does not officially claim any territory or the release of prisoners. The organization is rather motivated by a religious belief in their duty to fight a holy war against infidels.[26] They despise Western culture and propose its destruction. Furthermore, al-Qaeda may be named a protean enemy,[27] as its violence is not necessarily directed against the West but goes far beyond the "clash of civilizations," taking the form of sectarian wars, especially in the context of the war in Iraq.[28] The many faces of al-Qaeda are still to be revealed.

3.3 The Criminalization of International
Terrorist Acts

The lack of a consensual definition of international terrorism has not curbed international efforts to build legal mechanisms to fight the threat posed by acts of international terrorism. The international community gradually responded to the wave of international terrorist acts that took place during the last four decades of the twentieth century with a set of regional[29] and international[30] instruments designed to prevent, control, and suppress specific acts of international terrorism.

3.3.1 International Instruments
Regulating Terrorist Acts

Since 1963, thirteen major conventions and protocols of universal scope have been elaborated.[31] They cover a great variety of conducts considered to be specific manifestations of terrorism, such as the hijacking of civil aircraft, sabotage of civil aircraft and air navigation facilities, attacks on internationally protected persons and kidnappings of diplomats, the use of bombing and explosive devices against civilian installations and persons, and the financing of terrorist activities. Hence the gradual criminalization of international terrorist acts by international conventions has not lead to an all-inclusive and unambiguous definition of international terrorism, but it has developed criteria for the identification and appraisal of the elements of this multifaceted phenomenon.[32]

3.3.2 Controversies over the
Applicable Law

Before the establishment of the Counter-Terrorism Committee (CTC)[33] by Resolution 1373 (2001) following the September 11th attacks, terrorism was predominately treated within the limits of criminal law. Even though the existing international instruments consider terrorist acts as purely criminal acts to be regulated and enforced by domestic law, there are many loopholes in the texts.[34] The ambiguous language adopted in these conventions has led to differing interpretations, thus causing controversy as to what the applicable law should be.[35] The so-called ambiguity in the language is a direct result of the insistence of Arab and nonaligned states to explicit mention the right of self-determination and national liberation in the text of virtually all terrorist conventions and related General Assembly resolutions until the mid-1990s. Moreover, the confusion between terrorists and "freedom fighters" is misguided. Accordingly, Dinstein appraises terrorism and wars of liberation as distinct subjects:

"In fact-and certainly in law-these are disparate subjects that have little in common. Wars of liberation are wars the object of which is attaining political independence. Terrorism is a method of operation that can and does take place both in wartime and in peacetime, by, as well as against "freedom fighters." . . . Terrorism, too, must be analyzed on its own merits, irrespective of the lawfulness of wars of liberation."[36]

3.3.3 The Unequivocal Condemnation of All
International Terrorist Acts

In the 1990s there were important developments in the direction of an unequivocal condemnation of international terrorism in general, independent of motives and purposes. First, the 1997 Terrorism Bombing Convention and the 1999 International Convention for the Suppression of the Financing of Terrorism represent a significant innovation compared to the legal treatment of international terrorist acts by previous international instruments.[37] Second, the Security Council started to act according to Chapter VII of the United Nations Charter[38] and gradually address all acts of international terrorism as a threat to international peace and security.[39] Third, the General Assembly approved a number of measures to eliminate international terrorism and to strongly condemn all acts, methods, and practices of terrorism as criminal and unjustifiable, committed wherever and by whomsoever,[40] while also addressing state-sponsored terrorism.

The 1997 International Convention for the Suppression of Terrorist Bombing is innovative in many ways.[41] It recognizes that existing multilateral legal provisions do not adequately address terrorist attacks by means of explosives or other lethal devices.[42] Moreover, the convention makes no reference to the right of self-determination and explicitly states that terrorist acts are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious, or other similar nature.[43] It also broadens the scope of counterterrorism obligations, as it establishes practical measures that state parties shall take in order to prevent terrorist bombings, including counter preparations in their respective territories for the commission of those offences within or outside their territories.[44] The 1999 International Convention for the Suppression of the Financing of Terrorism, in the same spirit of the 1997 Terrorism Bombing Convention,[45] supplements existing international instruments regulating terrorist acts. It fills an important gap, as it addresses the phenomenon of terrorist financing. It requires state parties to take a number of measures to prohibit[46] and prevent[47] illegal activities of persons and organizations that knowingly encourage, instigate, organize, or engage in the commission of offences listed in previous antiterrorism conventions. It even states that it is not necessary that the funds were actually used to carry out an offense.[48]

3.3.4 The Law-Enforcement Approach

Overall, the 1997 Terrorism Bombing Convention and the 1999 International Convention for the Suppression of the Financing of Terrorism do not specifically address the issue of state sponsorship or state responsibility for harboring or supporting international terrorist organizations. The eminent law-enforcement approach does not leave much ground for addressing terrorist acts within the use-of-force legal framework, as it focuses on the application of domestic law rather than international law.[49] The main legal development regarding state involvement in international terrorism actually took place in the United Nations Security Council and General Assembly.

3.3.5 The Security Council Selective Condemnation
of State Support of International Terrorism

Previous to September 11, the Security Council response to international terrorist acts lacked consistency in the identification of terrorist acts, and the Council remained reluctant to deem all acts of international terrorism a threat to international peace and security. Nevertheless, in many instances the council condemned the support of international terrorism, for example, the Libyan involvement in the Lockerbie bombing in 1992,[50] Sudan's involvement in the terrorist assassination attempt on the President of Egypt in 1995,[51] and the Taliban's involvement in the embassy terrorist bomb attacks in Kenya and Tanzania in 1998.[52] The council addressed several modalities of support, from active to passive support. For example, in Resolution 748 (1992), the council affirmed that "every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when such acts involve a threat or use of force."[53]

The terminology adopted by the Security Council regarding the Libyan role in the Lockerbie bombing reflects the General Assembly's definition of aggression,[54] which the ICJ later recognized in the Nicaragua case[55] and Congo v. Uganda case.[56] But in the late 1990s, some council resolutions dealing with the support of international terrorism went far beyond the traditional perception at the time. Resolution 1267 (1999), which dealt with the Taliban's role in the 1998 U.S. embassy bombings in Kenya and Tanzania, strongly condemned "the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and planning of terrorist acts" and even imposed sanctions to be monitored by a special Security Council committee created to this aim.[57] Although the text of Resolution 1267 (1999) seems familiar given the post-September 11th emphasis on passive support of international terrorism, there was no equivalent perception in the General Assembly. This is the case of the Measures to Eliminate International Terrorism adopted by the General Assembly in February 2000, which callsupon states to "refrain from financing, encouraging, providing training for, or otherwise supporting terrorist activities."[58]

3.3.6 Addressing State Support of International Terrorism
after September 11, 2001

After the September 11th terrorist attacks, the General Assembly started to approach the support of international terrorism in stronger terms.[59] In 2006 the United Nations Global Strategy to Counter-Terrorism was launched. The strategy, adopted on September 8, 2006, marks the first time that countries around the world agreed to a common strategic approach to fight terrorism.[60] The strategy forms a basis for a concrete plan of action: to address the conditions conducive to the spread of terrorism, to prevent and combat terrorism, to take measures to build state capacity to fight terrorism, to strengthen the role of the United Nations in combating terrorism, and to ensure the respect of human rights while countering terrorism. Among the measures to prevent and combat terrorism, states are asked not only "to refrain from organizing, instigating, facilitating, participating in, financing, encouraging or tolerating terrorist activities" but also "to take appropriate practical measures to ensure that our respective territories are not used for terrorist installations or training camps, or for the preparation or organization of terrorist acts intended to be committed against other States or their citizens."[61]

The change of perception in the General Assembly's counterterrorism efforts is certainly a result of the far-reaching measures adopted by the Security Council in the wake of the September 11th terrorist attacks.[62] Resolution 1373 (2001), adopted on September 28, established a Counter Terrorism Committee (CTC) comprising all members of the Security Council. This resolution obliges United Nations member states to take a number of measures to prevent terrorist activities and to criminalize various forms of terrorist actions, as well as to take measures that assist and promote cooperation among countries, including adherence to international counterterrorism instruments. Moreover, it takes a firm direction in banishing all types of state support of international terrorism, as the council unanimously decided that "all States shall refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists"[63] and to "deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens."[64]

The Security Council's explicit reference to both active and passive support raises many questions. Does the category of active support include passive support, or are they distinct but overlapping legal categories? How should each category of support be appraised? What are the essential elements that characterize each modality of support? Previous to September 11, active support was generally seen as the most deplorable modality, but the U.S. military intervention in Afghanistan, based on the claim of self-defense, may hardly be identified as active support in the form of indirect aggression. The next section introduces the notion of state support of international terrorism, which is the subject of discussion in chapters 4 and 5.

3.4 International Terrorism and the State

The interaction between international terrorism and states may be appraised in many ways according to one's political view. Like international terrorism, state-supported terrorism tends to be subverted by the reactionary rhetoric adopted by movements of national liberation[65] and urban guerrillas[66] fighting against colonial regimes and dictatorships. These movements refuse to denominate themselves as terrorists and instead accuses the state, against whom they were fighting, to be the main sponsor of terrorism, what they call "terrorist states."

3.4.1 Terrorist States

The concept of "terrorist states" actually inverts the logic of terrorism as it is currently regulated by international instruments,[67] focusing instead on the state's criminal acts carried out by official agents. In this sense, Chomsky praised the ICJ decision in the Nicaragua case that condemned the United States for unlawful use of force and concluded that "the guiding principle, it appears, is that the US is a lawless terrorist state and this is right and just, whatever the world may think, whatever international institutions may declare."[68]

International law ignores the existence of terrorist states, although it does not ignore the possibility that state officials may commit international crimes. Both international humanitarian law[69] (IHL) and human rights law[70] (HRL) are designed to deal with a whole range of acts, from assassination to hostage-taking, when they are carried out by state agents. They may constitute either crimes against humanity[71] or war crimes,[72] but they may not constitute acts of terrorism, according to existing conventions on terrorism.

3.4.2 International Terrorism and
Nonstate Actors

In international law, terrorist activities are rather associated with nonstate actors, meaning that international terrorist organizations may play a role in the international arena, although they are not subject of rights. In many instances, terrorist organizations constitute a military arm of national or political groups aiming to become part of the international community, sometimes as a new state, sometimes as a legitimate government. This is the case of most movements of self-determination and Marxists guerrillas.

Traditionally, state assistance of terrorist groups was a result of overlapping interests. States' support of terrorism was a strategic tool to achieve desirable outcomes, such as destabilizing a neighbor or exporting a political system. In this sense, international terrorism was to be viewed as a "weapon of choice,"[73] one used instead of other instruments of foreign policy considered more expensive and less effective.

The upsurge of religious terrorism puts in question the logic of state support of terrorism. First, al-Qaeda-style terrorism does not pursue any concrete or plausible aims. The Islamic jihad against infidels represents a paradigm shift compared to the terrorist groups who pursue becoming part of the state-centered international order. Second, terrorist organizations similar to al-Qaeda may not serve the same strategic interests of states, as they threaten the very concept of state. For this reasons, no state, with the exception of Taliban-controlled Afghanistan, which supported al-Qaeda for domestic reasons, has ever offered open support to the organization. Third, al-Qaeda, already a decentralized organization, has become more decentralized since the fall of the Taliban.[74] The group's leaders are largely dispersed and keen to resort to virtual command and open to nonconventional methods of operation. The level of autonomy common to al-Qaeda operations is, however, remarkable and unprecedented.

3.4.3 State Support of International Terrorism

Even international terrorist organizations like al-Qaeda cannot flourish without a state connection. States still play a crucial and sometimes indispensable role in the failure or success of private terrorist activities.[75] Nevertheless, terrorist organizations rely on a certain territorial basis that depends either on governmental toleration or weak counterterrorism infrastructures. Only in the shadow of state interference may an independent terrorist organization recruit new members and plan future attacks.

After September 11, the question about state-supported terrorism centers on a broader counterterrorism action, including more than a duty to abstain from assisting terrorist groups by providing material support. It means rethinking the traditional rules that deem the support of terrorism unlawful, as the active support of a state becomes less relevant. In addition to a duty to abstain from indirect use of force emerges a duty to act and prevent international terrorism.

It means also that the traditional concept of indirect aggression as a covert action has proved to be insufficient to assess a state's responsibility for international terrorism private acts in concrete cases dealing with the right of self-defense against Afghanistan (2001) and Lebanon (2006). Rather than traditional assistance in the form of provision of operational aid, arms, or money, the failure of Afghanistan and Lebanon to prevent the occurrence of terrorist attacks remains the key issue to address the preferential target of the right of self-defense of the United States and Israel, respectively.

3.4.4 Multiple State Sponsors and the
"Preferential Target"

The scope of the involvement between states and international terrorist organizations may also include the participation of multiple actors, private and public, which, depending on their interests and degree of influence, may be held accountable for a single incident. For example, in the case of September 11, the United States categorically accused Afghanistan for allowing al-Qaeda training camps in its territory while ignoring the fact that 15 of the 19 hijackers were Saudi Arabian nationals and that Al Qaeda operated in Pakistan as well. The choice of the United States' self-defense target, however, was not deliberate but rather followed a rational logic of previous Security Council resolutions, such as Resolutions 1193 (1998)[76] and 1267 (1999),[77] demanding that the Taliban refrain from harboring, providing sanctuary for, and training terrorists and cooperate in bringing indicted terrorists to justice. Afghanistan was the weakest states among all possible options, and the Taliban was responsible for a series of human rights violations.[78] The multiple potential targets of self-defense arising from a single terrorist attack are indeed critical in defining what may be the gravest form of support, implying that there are different levels of failure, just as there are different levels of active support.

In practice, the final choice of a preferential target reveals a proper counterterrorism policy directed against specific behavior. After the September 11th attacks, the United States released a robust strategy against international terrorism with different approaches.[79] States that harbor international terrorist organizations are to be treated as their hosts, as a terror state. Rogue states are evil entities that pursue WMDs and violate human rights. Moreover, in 2006 the U.S. Department of State Country Reports on Terrorism started to adopt a clear distinction between terrorist safe havens[80] and state sponsors of terrorism,[81] indicating a better understanding of the threat posed by different states' connections with terrorist organizations.

3.4.5 Terrorist Safe Havens and
Passive Support

Although the presence of terrorist safe havens may still be a form of support, it is no longer active support. As I will argue later, providing safe havens for terrorists constitutes the gravest form of passive support. Inaction, omission, or turning a blind eye are all forms of passive support and may happen anywhere. Virtually all states encounter some degree of failure. The findings of the inquiry into the September 11th attacks, as well as those of the 2005 Madrid and the 2006 London bombings, show that all victim states served as a base for the perpetrators of their respective terrorist attacks.[82] They failed, however, to take action against the terrorists and their organizations, despite the fact that they were willing to prevent

the terrorist attacks and had complied with reasonable standards of counterterrorism capacity.

The providing of terrorist safe havens includes all forms of passive support: inaction, omission, or turning a blind eye. The difference is that in this case the terrorist organization receives more than passive support; it receives a considerable piece of territory where it exercises independent control.

3.5 The Harbor and Support Rule (HSR)

The Security Council's first reaction with regard to possible states sponsors involved in the September 11th attack was to stress that "those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable."[83] The language of Security Council Resolution 1368 (2001) was later claimed to be a relaxation of the category of state support of terrorism to include the modality of harboring terrorist organizations, the so-called Harbor and Support Rule (HSR).[84] According to Jinks,

"the emergent "harboring" or "supporting" rule represents a substantial relaxation of the traditional attribution regime-one that may signal a shift in the very nature of 'state action." . . . The emergent rule arguably reconfigures the distinction between public and private conduct."[85]

Even though the Security Council language in Resolution 1368 (2001) may suggest a relaxation of the rules regarding the attribution of terrorist organization acts to supporting states, this assumption may be deceiving. Harbor and support may characterize different modalities of state support of international terrorism, meaning that harboring terrorist organizations may imply passive support but not necessarily active support.[86]

3.5.1 State Responsibility and Passive Support

The conception of a harbor and support rule that supposedly extends state responsibility over acts of their private hosts is actually misconceived and may lead to many undesirable collateral consequences.[87] Even though harboring

terrorist organizations may be considered a form of support, it may not be explained in terms of state responsibility for acts of private armed groups, according to the ILC Draft Rules on Responsibility of States for Internationally Wrongful Acts,[88] without generating double standards as to the preferential target of self-defense.[89]

The traditional rules of state responsibility for acts of armed private groups are actually built under the paradigm of active support. This paradigm establishes a state's liability for unofficial, private armed groups acting under the state's command and ultimately controlled by the supporting state. This is exactly the notion of indirect aggression embedded in the General Assembly's definition of aggression's reference to the terms "sending by or on behalf of a State of armed bands."

The phenomenon of harboring international terrorist organizations demands a different assessment. The gravity and proportions assumed by this category of support have to be measured on a different scale, that of passive support. In order to prove this argument, I will present and compare the essential elements of each broader category of support. In the following chapters I discuss separately the different forms and levels of active and passive support.

3.6 The Dark Side of the
"War on Terror"

The legal construction underlying the argument of self-defense against terrorist acts does not address several questions lying beyond the positivist legal debate regarding the interpretation of critical terms. For example, what constitutes an armed attack? May terrorist acts be equated to an armed attack in terms of Article 51? Looking at the big picture, multiple arguments defy the legal construction discussed in chapters 2 and 3, view as merely utilitarian, developed with clear intent to adequate the post-UN Charter normative framework regulating the use of force and its exception in favor of a reduced number of states, such as the United States and Israel, which have consistently claimed the right of self-defense to justify their use of force against third states, viewed by many as a pretext for aggression, a far more severe crime than terrorist acts.[90]

The events of September 11, 2001 directly influenced the rise of international terrorism as a top concern in the international agenda. But how much does the international struggle against terrorism correspond to the needs of the majority of states? Which are the real threats to the world population? Comparing terrorism to other actual treats to humankind, such as widespread poverty, hunger, diseases, environment degradation, and civil strife, it is hard to believe that combating terrorism will make the world a safer place, at least for the overwhelming majority of its population.

Furthermore, at the rhetorical level, the Bush Doctrine seems to echo Cold War rhetoric, especially the Reagan-Shultz doctrine regarding the evil empire that contended that the UN Charter entitles the United States to use force in self-defense against future attacks. The war on terrorism during the Cold War period also constituted the justification for widespread human rights abuses perpetrated by dictatorships in Latin America and the repression apparatus of the apartheid regime in South Africa. Chile, Argentina, and Brazil all justified their systematic disappearances and tortures as measures to fight terrorism. The appeal to the idea of evil states and nuclear threats was present in the Cold War rhetorical defense of the United States. Resituating the Cold War rhetoric in the 21st century, however, raises a great degree of uncertainty, considering the present political conjuncture involving major states such as Russia and China.

The United States-lead invasion of Iraq in 2003 and, more recently, Russia's massive use of force against Georgia, put into question some of the more positive post-Cold War developments, especially the possibility of consensual agreement at the Security Council, thus casting uncertainty over the future of the collective security system in the twenty-first century. China's refusal to support an international intervention in Darfur's ongoing genocide revives old realists' concerns, bypassing humanitarian concerns. In this sense, the same may be said of the situation involving the wars in Iraq and Georgia. Iraq's oil wealth was perceived by a large segment of the public opinion to be the main reason for the invasion. Georgia's proximity to the West and its strategic position linking gas supplies was again perceived to be the reason for Russia's massive invasion in August 2008.[91]

Beyond the critical arguments relating the war on terror to economic interests and rhetorical manipulation to protect realist concerns, a different question should also be raised: Does the use of force constitute an effective measure for combating international terrorism? The ongoing outcome of the war in Afghanistan and the outcome of the 2006 Israel-Lebanon War suggest the contrary. Afghanistan did not become a safer place. Waves of terrorism have increased as insecurity has spread all over the country, while the Taliban have regained control of some areas. Bin Laden was never captured there[92], and the border between Pakistan and Afghanistan remains a refuge for radicalism and is probably the most dangerous place in the world.[93] Lebanon, for its turn, was hardly damaged during the war, but Hezbollah regained popularity, returned to the government strengthened, and reached a surprising deal with Israel, perceived as a major victory for Hezbollah, when it returned in a prisoner swap the bodies of kidnapped soldiers in exchange for five Lebanese prisoners and almost two hundred bodies of Lebanese militants, who were received as heroes in Lebanon.[94] Whereas these concrete cases will be discussed in the following sections from a legal standpoint, the next chapters make a further inquiry into the legal developments and major turning points regarding the issue of state sponsorship of international terrorism.

The following sections discuss the legal construction underlying the normative ground for attribution of terrorist acts, whether active or passive, to sponsoring states. Each part is followed by a selected case study exemplifying the legal arguments defended by states that claimed self-defense against different forms of state sponsorship. At the end of each chapter, I will resituate the legal discussion to critical approaches related to these claims in the broader context.

[1] Bassiouni, M. Cherif. Legal Control of International Terrorism: a Policy-Oriented Assessment . Harvard International Law Journal. V. 43, n. 1, Winter, 2002, p. 783-786

[2] Hoffman, Bruce. Inside Terrorism. Revised and Expanded Edition. Columbia University Press. 2006, p. 166

[3] Verwey, Wil D. The International Hostages Convention and National Liberation Movements. The American Journal of International Law, Vol. 75, No. 1 (Jan., 1981), pp. 69-70

[4] See the United Nations counter-terrorism task force, information available at <http://www.un.org/terrorism/cttaskforce.html>

[5] See Security Council Counter-Terrorism-Committee, information available at<http://www.un.org/sc/ctc/>

[6] Id, In 2001, following the September 11 terrorist attacks against the U.S., the Security Council established a Counter Terrorism Committee also comprising all members of the Security Council, under resolution 1373. This resolution obliges Member States to take a number of measures to prevent terrorist activities and to criminalize various forms of terrorist actions, as well as to take measures that assist and promote cooperation among countries including adherence to international counter-terrorism instruments. Member States are required to report regularly to the Counter Terrorism Committee on the measures they have taken to implement UN/SC/RES 1373 (2001).

[7] Id, supra note 190 , p. 3-4

[8] Although there is no consensual international definition of terrorism, I agree with Bruce Hoffman's five distinguish characteristics between terrorism and other crimes. In his account terrorism is ineluctably political in aims or motives; violent or threatens violence; designed to have far-reaching psychological repercussions beyond the immediate victim or target; conducted either by an organization or by individuals directed influenced, motivated, or inspired by the ideological aims or example of some existent terrorist movement or leader; and perpetrated by a subnational group or nonState entity. Ibid, p. 40. Another criteria, regarding the target of the terrorist attack, by restricting to attacks against non-combatants is added by Daniel Byman. I see it as problematical since it doesn't differentiate between military targets in activity and hors de combat. See Byman, Daniel. Deadly Connections: States that Sponsor Terrorism. Cambridge University Press. 2005, p. 8. For a further discussion regarding a legally binding definition of international terrorism will be addressed in the following item 3.1.3.

[9] Id, supra note 190, p. 5-6. The organization Narodnaya Volya, or People's will, was a small group of Russian constitutionalists that had been founded in 1878 to challenge Czarist rule. To this group the "propaganda by deed" meant the selective targeting of specific individuals whom the group considered the embodiment of the oppressive State. Their main accomplishment was the assassination of Czar Alexander II on March 1st, 1881.

[10] Id. Carlos Pisacane, also known as Duke of San Giovanni, argued that violence was necessary not only to draw attention to, or generate publicity for, a cause, but also to inform, educate, and ultimately rally masses behind the revolution. In practice, he is credited with defining the theoretical justification for political violence.

[11] The anarchist were responsible for assassinating several public figures, between 1878 an 1926, including, among others, the Russian Tsar Alexander II, in 1891, the French president Sadi Carnotin, in 1894; the Spanish Prime minister Cánovas, in 1897; the King Umberto I of Italy, in 1900; the U.S. president William McKinley, in 1901; the king George I of Greece, in 1913; and the Archduke Franz Ferdinand of Austria in 1914, triggering the First World War.

[12] For a in-depth assessment see Alexander, Yonah; Pluchinsky, Dennis A. Europe's Red Terrorists: The Fighting Communist Organizations. Frank Cass. 1992

[13] The Economist. Lessons from anarchy. Printed Edition. Aug 18th 2005

[14] See Schwartz, Stephen. The Two Faces of Islam: The house of Sa'ud from Tradition to Terror. Doubleday. 2002

[15] The labels such as 'freedom fighter' and 'urban guerrilla' may be considered as a semantic camouflage to further obscure the meaning of terrorism. The intentional obfuscation of the term in the context of national liberation from occupation impacted the international debate previous to September 11th and hampered a consensual definition of terrorism, since then. Yasser Arafat successfully used the term freedom fighter' dictum to designate Israel's counter-terrorism policy against the PLO. The IRA in Northern Ireland and Nelson Mandela in South Africa also adopted this view to contest their rival regimes

[16] This Convention never entered into force as it lacked the number of ratifications required for entering into force. The only State to ratify the Convention was India that at the time was a British colony. The ratification, in reality, was calculated to cope with the problem of terrorism against the colonial regime. Britain refused to ratify the Convention clearly showing signs of double standards its perception of terrorism.

[17] For information see UN Office on Drugs and Crimes. Definitions of Terrorism <http://www.unodc.org/unodc/terrorism_definitions.html>

[18] Id, supra note 190, , p. 20-22

[19] Id, p. 65-80; see also Dershowitz, Alan M. Why Terrorism Works: understanding the threat, responding to the challenge. Yale University Press. 2002; Daguzan, Jean-François. Terrorisme (s) Abrégé d'une violence qui dure. CNRS Éditions. 2006, p. 89

[20] Id, supra note 202

[21] For a further discussion see item 3.3.3

[22] Murphy, John F. State Support of International Terrorism: Legal, Political and Economic Dimensions. Westview Press. 1989, p. 17-20

[23] The conflict between Colombia and FARC, a Marxist guerrilla, considered by Colombia as a terrorist group, started during the 1960's. FARC adopted terrorist acts as a weapon of choice and has been behind several terrorist acts against Colombia government targets. For a discussion see Waisberg, Tatiana. Colombia's Use of Force in Ecuador Against a Terrorist Organization: International Law and the Use of Force Against Non-State Actors. ASIL Insights. vol. 12, issue. 17. August 22, 2008 available at <http://www.asil.org/insights/2008/08/insights080822.html>

[24] The conflict between Russia and Chechen separatists groups dates back to the end of the cold war, when the Soviet Union was dismantled and a number of States gained independence. Chechnya, however, remained as part of the Russian federation, which opposes its independence. Chechen groups were responsible for several terrorist acts against Russian targets.

213 After September 11th (2001), the Security Council resolutions started to condemn terrorist attacks that until then were confined to internal affairs, thus relating to some terrorist acts carried out within the context of internal conflict as a threat to international peace and security . So for example, the Security Council prompted condemned the act of taking hostages in Moscow by chechenian rebels in 2002, S/RES/1440 (2002), and the bomb attack in Bogota by FARC's militants, S/RES/1465 (2003), as a threat to international peace and security, despite the fact that such attacks were restricted to a national struggle, with unlike world wide repercussion except for the media coverage.

[26] The Economist. Suicide Terrorism: Martyrdom and murder. Print Edition, January 8th 2004

[27] Stern, Jessica. The Protean Enemy. Foreign Affairs, July/August 2003

[28] Riedel, Bruce. Al Qaeda Strikes Back. Foreign Affairs, May/June 2007

[29] The European Union was the first regional organization to adopt a joint action to fight against terrorism. After the September 11th attacks other organizations also have made official their fight against terrorism, such as OAS, NATO, the African Union. For information see e.g., the Organization of American States (OAS) response to terrorism <http://fpc.state.gov/fpc/7540.htm>, the EU fight against terrorist documents http://ec.europa.eu/justice_home/doc_centre/criminal/terrorism/doc_criminal_terrorism_en.htm> , and the African Union Counter-Terrorism policy <http://www.africa-union.org/root/au/AUC/Departments/PSC/Counter_Terrorism.htm>

[30] Terrorism has been on the agenda of the United Nations for decades. Thirteen international conventions have been elaborated within the framework of the United Nations system relating to specific terrorist activities. <http://www.un.org/terrorism/index.shtml>

[31] 1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft; 1970 Convention for the Suppression of Unlawful Seizure of Aircraft; 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons; 1979 International Convention against the Taking of Hostages; 1980 Convention on the Physical Protection of Nuclear Material; 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf; 1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1997 International Convention for the Suppression of Terrorist Bombings; 1999 International Convention for the Suppression of the Financing of Terrorism; 2005 International Convention for the Suppression of Acts of Nuclear Terrorism

[32] The International Convention for the Suppression of Terrorist bombings, for example, reflects the reality of contemporary terrorist acts, and covers a wide range of actions by including 'terrorist attacks by means of explosives or other lethal devices'. According to Article 1 (3) "Explosive or other lethal device" means: a. An explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage; or b. A weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material. It includes unconventional weapons, such as airplanes or suicidal bombers. See also Bassiouni, M. Cherif. International Terrorism. International Criminal Law. Second Edition. Volume 1 Crimes. Edited by M. Cherif Bassiouni. Transnational Publishers, Inc. 1999, p. 771

[33] See supra note 193.

[34] The combination between acts and motives as constitutive elements of international terrorist acts has shown to be unbearable, since it lead to the inversion of the meaning sought by the own prohibition, when applied in the context of wars of national liberation. So, for example the act of hostage-taking is regulated by the 1979 International Convention Against the Taking of Hostages which notwithstanding the definition of the offense by Article 1 (1), explicitly provides that 'The present Convention shall not apply to an act of hostage-taking committed in the course of armed conflicts as defined in the Geneva Conventions of 1949 and the Protocols thereto, including armed conflicts mentioned in Article 1, paragraph 4, of Additional Protocol I of 1977, in which peoples are fighting against colonial domination an alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration of Principles of International Law concerning Friendly Relations and Cooperationamong States in accordance with the Charter of the United Nations. See Reisman, W Michael. Allocating Competences to Use Coertion in the Post-Cold War World: Practices, Conditions, and Prospects. Law and Force in the New International Order. Edited by Lori Fisler Damrosch & David J. Scheffer. Westview Press. 1991 p. 31-34

[35] Id, supra note 220, p. 767

[36] Dinstein, Yoram. Terrorism and War of Liberation: an Israeli Perspective of the Arab-Israeli Conflict. International Terrorism and Political Crimes. Edited by M. Cherif Bassiouni. Charles C. Thomas Publisher. 1975, p. 155

[37] In 1994, the United Nations General Assembly adopted the Declaration on Measures to Eliminate International Terrorism, A/RES/49/60 'Firmly determined to eliminate international terrorism in all its forms and manifestations, Convinced also that the suppression of acts of international terrorism, including those in which States are directly or indirectly involved, is an essential element for the maintenance of international peace and security'. In the following years other Declarations supplemented the 1994 Declarations, prompting the drafting of anti-terrorist Conventions, such as the International Convention for the Suppression of Terrorist Bombing, the Suppressing of the Financing of Terrorism and the Suppression of Acts of Nuclear terrorism.

[38] Chapter VII of the United Nations Charter authorizes the Security Council to take measures to restore international peace and security. It includes actions involving the use of force, authorized by article 42. The decisions taken under Charter VII are binding.

[39] The first Council resolution to use the term 'terrorism', SC Res 579 of 1985, condemned 'all acts of hostage-taking and abduction' as 'manifestations of international terrorism'. There is no reference to international peace and security but rather hostage-taking and abduction are considered 'offences of grave concern to the international community'. In 1992, the Council, acting under Chapater VII of the Charter of the United Nations, condemned the destruction of the Pan Am flight over Lockerbie, and required Libya to cooperate and surrender two nationals for trial. Following the non-compliance of SC Res 731, the Council approved SC Res 748 'convinced that the suppression of acts of international terrorism, including those in which States are directly or indirectly involved, is essential for the maintenance of international peace and security.' But only in 1998, the Council took a clear view in respect to terrorist acts as a whole. SC Res 1189, following the terrorist bomb attacks against the U.S. Embassies in Kenya and Tanzania, eventually 'convinced that the suppression of acts of international terrorism is essential for the maintenance of international peace and security, and reaffirming the determination of the international community to eliminate international terrorism in all its forms and manifestations.' For a discussion on the Security Council measures addressing terrorist threats, see Saul, Ben. Definition of 'Terrorism' in the UN Security Council: 1985-2004. Chinese Journal of International Law (2005), Vol. 4, No. 1, 141-166

[40] A/RES/49/60 (1994); A/RES/50/53 (1995); A/RES/51/210 (1996); A/RES/52/165 (1997); A/RES/53/108 (1998); A/RES/54/110 (1999); A/RES/56/60 (2001)

[41] Witten, Samuel M. The International Convention for the Suppression of Terrorist Bombings. The American Journal of International Law, Vol. 92, No. 4 (Oct., 1998), pp. 774-781; The Convention entered into force on 23 May 2001. By January 2006, there were 148 State Parties.


[42] Id, see International Convention for the Suppression of Terrorist Bombing, adopted 15 December 1997.

[43] Id, see Article 5. It is worth to note that several States registered reservations on specific provisions of the Convention. Pakistan, for example, entered its reservation on the provision of article 5, saying that the it did not take into account situations of armed conflicts in which people were fighting against colonial domination and alien occupation in the exercise of their right of self-determination <http://www.nti.org/e_research/official_docs/inventory/pdfs/bomb.pdf>

[44] Id, Article 15.

[45] The is no mention to the right of self-determination and the Preamble recalls ' also all the relevant General Assembly resolutions on the matter, including resolution 49/60 of 9 December 1994 and its annex on the Declaration on Measures to Eliminate International Terrorism, in which the States Members of the United Nations solemnly reaffirmed their unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed, including those which jeopardize the friendly relations among States and peoples and threaten the territorial integrity and security of States'

[46] Id, supra note 230, Article 4, 5, 6, 7

[47] Id, Article 18

[48] Id, Article 2 (3)

[49] According to Travalio and Altenburg: 'The law enforcement approach to terrorism applies to domestic law, while the conflict management (use of force) approach applies international law, which includes the law of armed conflict, State responsibility, and the customary inherent right of anticipatory self-defense'. Travalio, Greg. Altenburg, John. Terrorism, state responsibility, and the use of military force. Chicago Journal of International Law. Chicago:Spring 2003. Vol. 4, Iss. 1, p. 97-119

[50] In 1992, Security Council Resolution 731 (1992) condemned the destruction of a civil airliner over Lockerbie in Scotland. It deplored Libya's failure to cooperate in establishing responsibility for these 'terrorist acts', and urged Libya to help to eliminate 'international terrorism'. UN/SC/RES 748 (1992) was adopted in stronger terms, as a response to the non-compliance of resolution 731. It required Libya to 'cease all forms of terrorist action and all assistance to terrorist groups'.

[51] Following the assassination attempt against Egyptian President Hosni Mubarak (Addis Ababa, Ethiopia, June 25, 1995), Security Council resolution 1044 (1996) condemned 'the terrorist assassination attempt' and called on Sudan to comply with Organization of African unity (OAU) requests to extradite three suspects to Ethiopia and to "desist from . assisting, supporting and facilitating terrorist activities and from giving shelter and sanctuary to terrorist elements", para. 4 (a) - (b)

[52] The Security Council responded to the U.S. Embassy bomb attack in Kenya and Tanzania with a series of resolutions. Resolution 1189 (1998) condemns the 'terrorist bomb attacks' but did not attribute responsibility for the attacks. Resolution 1193 (1998), 1214 (1998), 1267 (1999) and resolution 1333 (2000) demand that faction in the Afghan conflict, particularly the Taliban, refrain from harboring, providing sanctuary for and training terrorists, and cooperate in bringing indicted terrorists to justice.

[53] UN/SC/RES 748 (1992), para. 6

[54] UN/SC/RES 1267 (1999), para. 5

[55] GA/RES/3314 (XXIX), Definition of Aggression, 14 December 1974, 3 (g)

[56] For a broader discussion see item

[57] Id, supra note 242, 3-15

[58] A/RES/54/110, para.5

[59] The world leaders at the 2005 September Summit committed to a common Strategy to combat terrorism. The Secretary-General in his 2 May 2006 report, entitled Uniting against Terrorism, proposed the creation of a Global Counter-Terrorism Strategy. Information available at

< http://www.un.org/terrorism/strategy-world-summit-outcome.html>

[60] A/RES/60/288 <http://www.un.org/terrorism/strategy-counter-terrorism.html>

[61] Id, Part II, 1

[62] It is worth to note that in 2004 the Security Council eventually passed a non-binding resolution generically defining international terrorism. Resolution 1566 (2004) recalls that the following acts are never justifiable ' Recalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism'. See supra note 227, p. 164-5

[63] UN/SC/RES 1373 (2001), Acting under Chapter VII of the Charter of the United Nations, 2 (a).

[64] Id, , 2 (c)

[65] The Lehi (Lohamei Herut Israel), meaning 'fighters for the freedom of Israel' was the precursor to adopt this terminology, in 1940. Also known as "The Stern Gang", the Lehi were described by the British mandate as a terrorist organization, and were not accepted by the Jewish authorities, such as the Jewish Agency. The Lehi was responsible for the assassination of Lord Moyne on November 6th, 1944, and Count Bernadotte, on September 7th, 1948, and the bombing of several plains and railroads under the Palestinian British Mandate. Information available at <http://jerusalem.wikispaces.com/The+Lechi+Underground+in+Jerusalem>

Later, the term became popular with the Palestinian Liberation Organization (PLO) emblem of 'freedom fighters', and other Movements of National Liberation, such as UNITA in Angola, the Mujahiden in Afghanistan and the anti-communist Contras in Nicaragua, adopted the same term to designate their actions against the establishment. See supra note 190, p. 20-30

[66] Carlos Marighella, a theorist of 'urban guerrilla' fight, in Brazil, against the dictatorial regime, from the 1930's to the 1960's, and eventually was killed by the military junta, wrote a manual of the urban guerrilla. In his views 'Terrorism is an action, usually involving the placement of an explosive or firebomb of great destructive power, which is capable of effecting irreparable loss against the enemy. Terrorism requires that the urban guerrilla should have adequate theoretical and practical knowledge of how to make explosives.' He justified terrorist in this terms 'The terrorist act, apart from the apparent ease with which it can be carried out, is no different from other guerrilla acts and actions whose success depends on planning and determination. It is an action which the urban guerrilla must execute with the greatest calmness and determination.Terrorism is a weapon the revolutionary can never relinquish.' See Marighella, Carlos. Mini-manual of the Urban Guerrilla, available at <http://www.marxists.org/archive/marighella-carlos/1969/06/minimanual-urban-guerrilla/index.htm>

[67] See, e.g., The 1997 Terrorist Bombing Convention, Article 19 (2) The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

[68] Chomsky, Noam. International Terrorism: Image and Reality. In Alexander George (ed.), Western State Terrorism, Routledge, December, 1991 <http://www.chomsky.info/articles/199112--02.htm >

[69] International humanitarian law and international human rights law are two distinct but complementary bodies of law. Both seek to protect the individual from arbitrary action and abuse. Human rights are inherent to the human being and protect the individual at all times, in war and in peace. International humanitarian law only applies in situations of armed conflict. Thus, in times of armed conflict international human rights law and international humanitarian law both apply in a complementary manner. Humanitarian law applies in situations of armed conflict (see Q7), whereas human rights, or at least some of them, protect the individual at all times, in war and peace alike. However, some human rights treaties permit governments to derogate from certain rights in situations of public emergency. No derogations are permitted under IHL because it was
conceived for emergency situations, namely armed conflict.
Humanitarian law aims to protect people who do not or are no longer taking part in hostilities. The rules embodied in IHL impose duties on all parties to a conflict. Human rights, being tailored primarily for peacetime, apply to everyone. Their principal goal is to protect individuals from arbitrary behavior by their own governments. Human rights law does not deal with the conduct of hostilities. The main HL instruments are the 1899 and 1907 Hague and Four 1949 Geneva Conventions, as well the two 1977 Protocols to the Geneva Conventions. See the ICRC definitions <http://www.icrc.org/web/eng/siteeng0.nsf/html/5KZMUY>

[70] Human rights implementing mechanisms are complex and, contrary to IHL, include regional systems. Supervisory bodies, such as the UN Commission on Human Rights, are either based on the UN Charter or provided for in specific treaties (for example the Human Rights Committee, which is rooted in the International Covenant on Civil and Political Rights of 1966). The international human rights instruments contain clauses that authorize States confronted with a serious public threat to suspend the rights enshrined in them. An exception is made for certain fundamental rights laid down in each treaty, which must be respected in all circumstances and may never be waived regardless of the treaty. In particular, these include the right to life, the prohibition of torture and inhuman punishment or treatment, slavery and servitude, and the principle of legality and non-retroactivity of the law. These fundamental rights that States are bound to respect in all circumstances even in the event of a conflict or disturbances are known as the hard core of human rights. See the ICRC definitions <http://www.icrc.org/web/eng/siteeng0.nsf/html/5KZMUY>

[71] The Rome Statute offers a vast definition of Crimes against Humanity under article 7. <http://www.un.org/law/icc/statute/99_corr/2.htm>

[72] Id, Article 8.

[73] Byman, Daniel. Deadly Connections: States that Sponsor Terrorism. Cambridge University Press. 2005, p. 21.

[74] Id, supra note 215

[75] Becker, Tal. Terrorism and the State: Rethinking the Rules of State Responsibility. Hart Monographs in Transnational & International Law. Hart Publishing. Oxford and Portland, Oregon, 2006, p.2; Byman, Daniel. Deadly Connections: States that Sponsor Terrorism. Cambridge University Press. 2005, p.1-6

[76] UN/SC/RES 1193 (1998), para 15. See also UN/SC/RES 1214 (1998), para. 13

[77] UN/SC/RES 1267 (1999), para 1; UN/SC/RES 1333 (2000), para. 1

[78] Rubin, Elizabeth. In the Land of Taliban. New York Times. October, 22, 2006

[79] The United States National Security Strategy (NSS), from September 2002 changed the American foreign policy in order to adapt to demands of the war against terrorism. Later the subsequent NSS followed the same premise. See, e.g., Gray, Christine. The Use and Abuse of the International Court of Justice: Cases concerning the use of force after Nicaragua . EJIL (2003), Vol. 14, No. 5, 867-905; Ibid. The US National Security Strategy and the New "Bush Doctrine" on Preemptive Self-defense . Chinese Journal of International Law, 2002; 1: 437 - 448. see also supra note 157.

[80] See Country Reports on Terrorism, Released by the Office of the Coordinator for Counterterrorism, April 28, 2006 <http://www.state.gov/s/ct/rls/crt/2005/64333.htm> ; Country Reports on Terrorism, the Office of the Coordinator for Counterterrorism
April 30, 2007, <http://www.state.gov/s/ct/rls/crt/2006/82728.htm> 26/10/07

[81] See Country Reports on Terrorism, Released by the Office of the Coordinator for Counterterrorism, April 28, 2006 < http://www.state.gov/s/ct/rls/crt/2005/64337.htm> ; Country Reports on Terrorism, Released by the Office of the Coordinator for Counterterrorism
April 30, 2007 < http://www.state.gov/s/ct/rls/crt/2006/82736.htm> ; 26/10/07

[82] The Economist. Waiting for al-Qaeda's next bomb. Print Edition. May 3rd 2007

[83] S/RES/1368 (2001)

[84] Jinks, Derek. State responsibility for the acts of private armed groups. Chicago Journal of International Law. Chicago:Spring 2003. Vol. 4, Iss. 1, p. 83-95

[85] Id.

[86] For a further discussion on legal and practical issues related to state's active and passive support, see Chapter 4 and 5, respectively.

[87] According to Jinks the "HSR might complicate coalition building and constructive engagement in the "war on terror" by attributing radical illegality to too many states; HSR could increase the costs of routine counterterrorist activities by triggering the application of the Geneva Conventions; HSR might confer on terrorist groups privileges and immunities established in the laws of war; HSR might symbolically aggrandize terrorist groups by ascribing to them the status of an "army" or state-sponsored fighting force.", p. 5-7

[88] The International Law Commission's ("ILC") Draft Articles on Responsibility of States for Internationally Wrongful Acts suggest that attribution is appropriate only if the nonstate actor was "in fact acting on the instructions of, or under the direction or control of, that State in carrying out the [wrongful] conduct." State liability attaches only if the wrongful actor was either a formal or de facto agent or organ of the state. And States are therefore made responsible for the unlawful acts of another State if it: (1) knowingly aids or assists in the commission of the unlawful act (Article 16) or (2) knowingly directs or controls the unlawful conduct of the other state (Article 17-the interstate analogue to Article 8). United Nations, Report of the International Law Commission, UN Doc No A/56/10 at 45, [para] 76 (2001). The Articles are also annexed to General Assembly Res No 56/83, UN Doc No A/RES/56/83 at [para] 3 (2001). The final Articles, commentaries, prior drafts, tables showing the derivation of each provision, bibliography, and an informative introduction by the last special rapporteur on state responsibility, all appear in James Crawford, ed, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge 2002).

[89] For a discussion see item 2.2.1.

[90] Chomsky, Noam. It's the Oil, stupid!Khaleej Times, July 8, 2008 Available at <http://www.chomsky.info/articles/20080708.htm>

[91] The Economist. Briefing Russia and Georgia: A scripted war. Print edition, August 16, 2008, at 22-23

[92] See item

[93] The Economist. Pakistan: The world's most dangerous place. Print edition, January 5, 2008, at 7.

[94] Bar'el, Zvi. Analysis: In Lebanon, prisoner swap is Hezbollah victory. Haaretz.com, July 18, 2008 Available at <http://www.haaretz.com/hasen/spages/1002611.html>

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