This occasional series will highlight the book annotations that constitute the back pages of every issue of the NYU Journal of International Law and Politics. We are beginning with this review of Myra Williamson’s Terrorism, War and International Law: The Legality of the Use of Force Against Afghanistan in 2001, because it raises the crucial question of the right of States to use force in self-defense against non-State actors. This issue sits in the background of much of the current debates about the use of force, most recently in Professor Alston’s Targeted Killings report.
By Graham F. Dumas
Myra Williamson’s Terrorism, War and International Law: The Legality of the Use of Force Against Afghanistan in 2001 comes at a time when the conflict in Afghanistan is returning to the fore of U.S. foreign policy and as the fight against terrorism continues to expand. Yet many of the legal questions surrounding this conflict were simply glossed over at the time of the invasion and have not yet been satisfactorily resolved.
Basing her argument mainly on legal history, Williamson asserts that the use of force against Afghanistan could not be legally considered self-defense according to the U.N. Charter because there was no armed attack for the purposes of Article 51, because the Security Council did not authorize unilateral force in Resolution 1368, and because Al Qaeda’s actions could not be attributed to the Taliban. Similarly, the author argues that the invasion of Afghanistan was not legal under customary international law because it was neither necessary nor proportionate, and there was no immediate threat of attack in the weeks following September 11.
In vigorously asserting the illegality of the invasion of Afghanistan, Williamson raises a number of interesting points
and provokes a great deal of thought, especially with respect to the many weaker links in the argument for the invasion’s lawfulness. As she notes, the International Court of Justice (ICJ) has held on numerous occasions that Article 51 applies only to armed attacks by states, and the link between Al Qaeda and the Taliban is indeed tenuous, especially under a classical interpretation of the law. Particularly insightful is the study of the opinio juris of various NATO members with respect to that organization’s declaration that an armed attack occurred; the author suggests that what appeared to be a unanimous declaration that September 11 was sufficient to trigger the inherent right of self-defense was in fact anything but. Despite these effective points, Terrorism, War and International Law is a disappointing and ultimately unsuccessful effort which leaves out more than it includes, treats as fact several highly contentious claims necessary to support the main thesis, and often fails to address the post-Afghanistan era’s most pressing legal questions.
While Terrorism, War and International Law endeavors to tackle in depth an admirably wide range of problematic issues without overwhelming the reader, it often feels abbreviated; indeed, the laconic discussion in its 277 pages belies the promise of comprehensiveness offered by its overly grand title. The section on Afghanistan, on which the book might be expected to focus, is particularly frustrating in its brevity, while Williamson spends a great deal of time at the beginning of the book defining terrorism, articulating the history of armed conflict, and parsing trends in terrorist attacks. This information is, of course, useful, but its presentation is rather disorganized and, although it is tacked onto the main thesis towards the end of the book, the strength of its connection with the rest of the material is less than adequately demonstrated.
Williamson’s analysis of international custom on the use of force is often stilted and inflexible, and the author is unwilling to adapt such norms to incorporate post-September 11 practice, or even to consider the not insubstantial arguments for doing so. She simply assumes without adequate explanation that individual attacks perpetrated by the same organization as part of the same campaign should be considered legally discrete acts, thus prohibiting as illegally preemptive all self-defense measures after the first attack is concluded. Yet the campaign waged by Al Qaeda against U.S. interests could reasonably be analogized to traditional armed conflicts consisting of multiple attacks, in which the prohibition on preemptive self-defense essentially vanishes with the first strike. This argument is at least strong enough to warrant consideration and discussion in this book, especially in light of its significance for the potential development of international law; its omission is a glaring fault that cannot be ignored.
While Williamson’s interpretation is not wrong per se, she fails to deliver a compelling policy rationale in support of it. She argues that the U.N. Security Council should be responsible for military counter-terrorist operations, leaving only police actions to individual states—certainly not an unworthy goal. But the author gives little thought to the potential impact of this restrictive reading, which would make the use of force in self-defense against terrorist threats illegal. Although enabling states to claim self-defense in September 11-type situations would undoubtedly expand the law on the use of force, it would also bring such military action into the penumbra of recognized humanitarian law. This would serve to undermine many of the arguments based on the irregularity of such conflicts that have been advanced for denying combatants their rights under the Geneva Conventions. Further, Williamson fails to appreciate the position that, even if such legal restrictions on state action did exist, governments face overwhelming internal political pressure to resort to force against large-scale terrorist threats. Given this perhaps irresistible tendency, human rights may be served better by recognizing the legality of self-defense in such situations and then holding states to a higher standard in ensuing conflicts for the treatment of civilians and combatants alike.
Williamson is often content to take materials supporting her argument at face value, whereas she applies more careful analysis to distinguish those that might lend more support to opposing viewpoints. The author provides significant detail to support the argument that NATO’s invocation of Article V cannot be taken as unanimous opinio juris that the September 11 attacks were sufficient to allow self-defense measures. Yet she makes almost no mention of the Taliban’s close relationship with Al Qaeda when discussing the question of attribution. This is an extremely important issue for the present-day content of the law, as the nature of the ties between a host state and a terrorist organization may play a major role in determining the responsibility of that state in the event of a large-scale attack. Even if one disagrees with this highly contentious point, post-Afghanistan state practice is significant enough to warrant its discussion; it should not simply be ignored.
Williamson’s selective interpretation of Security Council resolutions is also highly suspect. Resolution 573, which condemned as illegal a 1985 attack by the Israeli Air Force on Yasser Arafat’s headquarters in Tunis in response to the murder of three Israeli citizens in Cyprus, is cited rather uncritically on the grounds that it was decided by a vote of fourteen to zero, with the US abstaining. In contrast, Resolution 1368, which condemned the September 11 attacks on the United States, is subjected to close scrutiny in order to attack the argument that it authorized unilateral military action. More detailed parsing of the language and opinio juris for resolutions supporting this book’s thesis would have gone a long way toward make it more convincing.
Additionally, Williamson ignores counterarguments to the ICJ’s Nicaragua decision and its 2004 Construction of a Wall advisory opinion. She relies heavily on Nicaragua and Wall to argue that, because the Court held that Article 51 applies only to armed attacks by states, the self-defense claim espoused by the United States was illegal and could not justify the invasion of Afghanistan. There is, however, no discussion of the terms of Article 51, which are not explicitly restricted to state action. Nor is any mention made of the separate opinions by several judges in Wall and Armed Activities on the Territory of the Congo, which question the premise that Article 51 applies solely to state actions. As in domestic law, separate ICJ opinions are often the source of developing law, and opinions diverging so severely from the established norm cannot simply be ignored; to do so borders on intellectual dishonesty.
Most frustrating of all is Williamson’s failure to ask the many difficult questions raised by the tension between traditional, state-centric international law and contemporary reality. What obligation do states owe one another to take measures against known terrorists operating on their territory, and what actions may be taken against governments that, like the Taliban, ignore or even encourage terrorist organizations? The author cites the Articles of State Responsibility for the proposition that responsibility for attacks cannot be extended from terrorists to the government of the state where they are based. Yet post-Afghanistan state practice may indicate otherwise, a fact that, if true, would alter significantly the patterns of responsibility established by the Articles. Such momentous pressures on existing international law are worthy of careful discussion in any treatment of this subject matter, even if the author disagrees with them entirely.
Likewise, if Nicaragua and Wall constitute the state of the law for all armed conflicts, and if to trigger Article 51 it is indeed required that armed attacks be perpetrated by states alone, this would leave a sizeable gap in the inherent right of states to defend themselves: states may not resort to force in self-defense against external terrorist threats, while domestic police powers are clearly insufficient to neutralize threats of the sort posed by Al Qaeda in Afghanistan prior to October 2001. This leaves the Security Council as the sole guarantor of domestic security in such situations and thus requires states to cede a tremendous and unprecedented amount of sovereignty on a matter that has traditionally rested squarely in the control of states themselves. So great is this cession of sovereignty that it may even contravene the right of self-determination on the part of established states, turning an essentially settled question into a massive controversy. Thus, post-September 11 state practice raises serious questions as to the viability of Article 51 in managing the use of force with respect to terrorist threats.
It is precisely questions like these that are central to any scholarly discussion of international law, terrorism, and the
use of force, as they represent the cutting edge on the subject. Williamson, however, chooses to ignore these problems, insisting instead on a highly formalistic interpretation of the law without persuasively articulating her reasons. This is unfortunate, as much of the legal and political narrative has been captured by those in favor of an expansive reading of the law, leading to a rather lopsided debate. A more careful and reasoned analysis would have been extremely helpful in mapping the legal boundaries of the use of force. Instead, this book is yet another in a long line that will be accepted or rejected according to political persuasion. Above all else, it is for this reason that Terrorism, War and International Law falls far short of its mark.