Post 9/11 ‘use of force’ in international law and much of the
understandings towards it has undergone great evolution. The
international world is at the hinge of the history as many of the old regime falls and new threats emerge. The challenges this have created for the traditional system have been unparalleled.
The ghastly act of bombing the twin towers of the World Trade Centre and the aftermath response made by the individual countries and international community at large had, many commentators felt, left the international law dumbfounded. This has been reflected by inability of the international law in categorizing the events of 9/11 within its framework and also in determining the legality of the action taken by the coalition forces as ‘war against terror’ in Afghanistan and beyond, following the two Security Council Resolutions. [1]
The event itself has led to the emergence of many new questions in the international law. Whether international law at present provides machinery to deal with the act of terrorism of the magnitude witnessed by 9/11? How far an individual State is justified in using force against another State to suppress terrorism? Whether the act of terror, especially by non- state actors, may be termed as ‘armed attack’ pursuant to Article 51? Whether the right of self- defence extinguishes once the ‘attack’ occurred or does it continue to exist to prevent a prospect ‘threat’? Who determines whether the prospect of such threats as mentioned above exist? The present research paper seeks to address the above amongst many other questions besides analyzing particular situation in some specific context.
The theme area of this article like any other themes in international law may have been dealt with by many different authors. Also such a broad theme as present is quite capable of admitting many things. Hence certain caveats are in order regarding relevance and scope of this research paper.
Post 9/11 has generated much of the literature on this subject so much so that any discussion on this may seem as repetitive. But some of the recent happenings around the world have revived the interest of scholars and practitioners of international law into this area. The killings of US born Yemeni cleric and Al- Qaeda leader Al- Alwaqi[2] and founder leader of Islamist militant organization Al- Qaeda Osama Bin Laden on foreign soils have far reaching consequences for this area of international law. In any case, the issues in debate since have refused to die down making this area still a fertile ground for all concerned. Finally it is necessary to mention that international action to suppress terrorism interfaces with many other areas of international law including state responsibility, international humanitarian law, human rights, international criminal law among others. The scope of present research paper however is only restricted to commentary on international norms of use of force to suppress terrorism and assessment of contemporary situations.
The General Principles Underlying Use of Force
The use of terrors as a means to achieve political ends is an old phenomenon.[3]However, in recent decades the situation has become more intense and complex. In many cases non- state actors choose to target another State, while in other cases terrorist targets the assets of the victim State in uninvolved third States to pressurize the government of the victim State. Still in others, some of the States actively aid and abet the actors to carry out attacks in other States. This has created a number of problems before international law, especially where the third State is involved. The first challenge is definitional itself. Secondly, whether there are agreed measures for prevention and punishment of terrorist acts. Also, does international law provide adequate mechanisms for action against state that aids and abets terrorism?
It is obvious that members of international community must follow the norms of international law in their dealings with international terrorism, particularly where the sovereignty and the territorial integrity of third State is involved. No doubt strong response is required to suppress international terrorism. But any measures evolved must be so, that does not detract from the established principles of international law. It is the situations such as these which test the faith of international community in international law; otherwise temptation may run high on the part of powerful nation to take action undermining the purposes and objectives of the United Nations system[4]. It is thus apt here to survey the emergent principles of international law governing use of force in circumstances involving international terrorism.
A. Prohibition of Use of Force
The present rules of international law, particularly the ‘law of war’ were devised aftermath of World War II to prevent the horrors and devastations of the scale witnessed during that period. The normative rule that prohibits the use of force in international relations was born of similar desire under the UN Charter System. The ban on use of force is laid down in Article 2(4) of the UN Charter which requires that States ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’
The ban on use of force was a rule of pre charter customary international law albeit rooted in concepts such as just war and lawful reprisal. The Charter rule, however, severely restricted the circumstances under which use of force may be considered legal.[5] Article 2(4) now place a general prohibition on use of force and extends this prohibition beyond war to include all types of unilateral use or threat of force. In fact, a substantial number of scholars attribute the rule contained in Article 2(4) to have attained a jus cogens character. [6]
The Charter allows for two exceptions to the general prohibition on use of force: (i) individual and collective self- defence under Article 51 and (ii) enforcement measures authorized by the Security Council in response to ‘any threat to the peace, breach of the peace or act of aggression’ under chapter VII [7]. The charter is fairly open-ended regarding the Security Council’s power to authorize force ‘to maintain or restore international peace and security’. In contrast, the UN Charter is rather restrictive with respect to the use of force by states. It is here that the dispute arises regarding validity of use of force by individual states to suppress international terrorism, whereby such action leads victim State to the territory of another State.
B. Self- Defence in International Law
Self- Defence, as is evident from the term, is a kind of self-help and is available to State in the event of illegal use of force but not in violation of international obligations of the State resorting to self- defence. Thus, self- defence, under modern international law, excludes acts of retaliation and also acts of deterrence against possible future attack. [8]
Article 51 of the UN Charter specifies the conditions under which individual states may resort to force. There has been considerable controversy as to the precise extent of the right to self-defence, especially with regards to what is meant by an ‘armed attack’. This question assumes particular significance to the present research paper so as to determine legality of use of force against terrorist supported by another State. Generally speaking, by virtue of Article 2(4), it can be defined as the use of force against a state’s territorial integrity and political independence, its exact scope is still in dispute. To illustrate, in its Nicaragua judgment, the ICJ found that sending armed bands or mercenaries into the territory of another state constituted an armed attack, while supply of arms or logistical support by itself did not amount to an armed attack. Thus, the ICJ left the question fairly open ended, whether the right of self- defence extends to attacks by non- state actors or whether its application is confined to response to attacks by the States.
Along with the scope of ‘armed attack’, another contentious issue pertains to whether a right to anticipatory or pre-emptive self- defence exists, whereby an actual armed attack has still not occurred but threatened. The restrictive view is that article 51, read in conjunction with the general prohibition of the use of force set out in Article 2(4) limits the invocation of such a right to cases where an actual armed attack has actually occurred and not where such attack being threatened. This view finds support from the fact that article 51, in contrast to article 2(4) leaves out any reference to the ‘threat’. The liberal view maintains that Article 51 should not be interpreted as excluding the right to anticipatory self-defence in the case of an imminent danger of attack. This view rejects the restrictive interpretation of the word ‘if’, as it is employed in Article 51, as meaning ‘if and only if’.[9] These scholars point out that by qualifying the right of self-defence as ‘inherent’, article 51 indicates the existence of a right of self- defence in pre-charter customary international law, according to which preventive measures are permitted.[10]
C. States’ Practice
The ICJ itself in Nicargua Case expressed no view on the issue of lawfulness of a response to an imminent threat of armed attack.[11]But the problem with the international system is that in majority of the cases it leaves such determination to be made by the States themselves.
Making legal rules in international law is one thing; hence it is relevant to see how interpretation of anticipatory self- defence played out in States’ practice. The State practice on this issue at best may be termed as ambiguous. The bombing of Iranian nuclear sites to prevent prospective nuclear attack on Israeli territories provide a typical case for analyzing this issue. While Security Council (SC) unanimously condemned Israeli action and found the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct, the Permanent and other members of the Council did so on different grounds. Some of the non- permanent Representatives [12] took restrictive position confining right to self- defence to cases where there is an actual ‘armed attack’, Britain justified its voting on the ground of Israeli action failing to meet the criteria evolved in Caroline Case [13], i.e. absence of instant and overwhelming situation necessitating self- defence action. Still further, US condemnation of Israeli action was based on entirely different plane. It held Israeli action untenable because of its failure to exhaust peaceful means for the resolution of this dispute.
The above positions offered by different States afford no safe view regarding permissibility or otherwise of measures to ward off anticipated attack where Nation States are involved. Still less the existing position clarifies regarding the self- defence right against non- state actors in case of anticipated attacks. But one thing may be said with certainty that even in case of anticipatory self- defence, the criteria of necessity and proportionality rule the roost.
The Wind of Change: Present Regime
As mentioned earlier that use of force as such, under article 2(4), against non- state actors is not prohibited per se, but states are under obligation not to use force in their ‘international relations’. As a consequence, anti-terrorist force could be used as long as it did not concern the scope of states’ international relations.
This clearly demonstrates that use of force against terrorists based in another state clearly comes within the scope of article 2(4). This, in turn, apparently meant that states on whose territories such attacks are carried out would be left with very little options and forced to bear the brunt silently. However, Charter system provides a distinct exception to prohibition of use of force under article 2(4). Chapter VII provides for collective enforcement measures authorized by Security Council, if it deems that a situation exists as a threat to, or breach of, the peace in the sense of Article 39 of the Charter. It needs to be mentioned though that before September 11, in no case the Council considered any specific terrorist activities, let alone terrorism in general as threat to international peace and security.
The 11 September events did not herald any change in normative rules. On the face of it, the Charter regime is the same. Articles 2(4), 42&43, and 51 UNC still apply. But the Security Council has re- invented itself and has taken some measures since September 11 to deal with terrorism.[14]Outside Security Council framework, countries like India presented a proposal to the United Nations General Assembly for a comprehensive convention against international terrorism, which has been unsuccessful due to the failure to agree on the scope of the Convention.
A. The Role of security Council and Its Limitations
As is well-known, in the last two decades the Security Council has asserted its role in the international system vis-a-vis terrorism. In fact after September 11, it has adopted more number of Resolutions on anti- terrorism measures than, perhaps on any other subjects. In its 1368 (2001) Resolution, the Council made first ever reference to terrorism, and noted that it was ‘determined to combat by all means threats to international peace and security caused by terrorist attack’ and regarded such attacks ‘like any act of international terrorism, as a threat to international peace and security’. This Resolution, it may be noted, was adopted not under Chapter VII, and thereby could not authorize collective use of force, nevertheless was quite a game changer.
In contrast, the Council in its Resolution 1373 (2001) specifically noted that it is acting under Chapter VII of the Charter and took specific non- military measures under article 41 of the Charter. In particular, it imposed on all States certain obligations specifically selected from those imposed by the 1999 Convention for the Suppression of the Financing of Terrorism, which at that time was not yet in force. In so acting, the Council rendered certain purely treaty rules binding on all Member States of the United Nations and thus assumed the role of a true international legislator.
There are two aspects to these resolutions. First, these two resolutions make it abundantly clear that acts of terrorism can amount to threats to peace in the sense of Article 39 of the Charter.[15] In fact the Council in its Resolution 1566 (2004) reiterated this principle that it ‘condemns in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed, as one of the most serious threats to peace and security’. And secondly, it has obligated upon all the States to take non- military measures as specified above for the purpose of fight against terrorism.
In making these resolutions though the Security Council asserted its role in dealing with terrorism but at the same time suffered itself from a limitation. Once the Council has qualified an act of terrorism as a threat to the peace, the path towards sanctions under articles 41 and 42 of the Charter is in principle open. Yet the Council has refrained from applying article 42. This is a clear indication that the Council has not authorized use of anti- terrorist force as military sanctions.
In fact, the US itself, after 9/11, did not resort to Chapter VII authorization to use force. Perhaps, it was evident to it that that general wordings of Resolution 1368 (2001) may be invoked by many other countries in the future. Instead it relied on that part wherein the Security Council recognized “the inherent right of individual or collective self-defence in accordance with the Charter”. Here the expression ‘in accordance with the Charter’ is of particular importance. Can it be said that Security Council Resolution 1368 granted a broader right to use force unilaterally in exercise of self- defence?
B. Right to Act Unilaterally
The key developments during the last two decades affect the rules governing the unilateral use of force against terrorists. During period preceding 1990’s, States have used force against terrorist threats but sparsely. However, the recent decade has seen marked increased in tendency to use force unitarily against terrorists on foreign soil. The situations in which force has been used vary significantly, but have almost exclusively been explained as exercises in self-defence.
The most obvious example is the US exercise of self-defence in response to the 9/11 attacks. The US response is not an isolated event. Many States have reacted against terrorist strikes by using force, including invasion of foreign territories from which the terrorists were operating. The most prominent example is Israel. Israel has repeatedly claimed its right to act in self- defence against terrorism emanating from foreign territories. In the summer of 2006, following rocket attacks against it by the Lebanon based Hezbollah, Israel responded with an invasion of Lebanon.[16] More recently in March 2008, Colombian forces moved into Ecuadorian territory in pursuit of rebels belonging to FARC.
The recent practices by the States described above have put strains on past understanding of circumstances which trigger exercise of self- defence right. The following sections analyse how the recent practices by the States have attempted to bring in prescriptive changes in key features of self- defence regime in relation to anti- terrorism measures.
(i) Rule of Attribution
Much of the above discussion centered on the fact whether individual States can claim recourse to self- defence under article 51 in the event of an attack by the terrorist by pursuing it on foreign territories. One of the many questions arises in this respect is the determination of state involvement in the attack. The ICJ in the Nicaragua Casehas laid down the ‘effective control’ test of attribution.[17] The test essentially attributes responsibility to a State for acts of private individuals on the basis of the following standards: (a) whether the state has issued instructions to those persons; (b) whether the state has directed the persons to do something; or (c) whether the state has exercised control over those persons.
However, many of the commentators have suggested that this rule stands modified in the light of recent State practices wherein responsibility is attributed to the States for its complicity in the activities of terrorists based on its territory – either because of its support below the level of direction and control or because it has provided a safe haven for terrorists. It brings the new approach in line with views expressed in Judge Jennings’ dissent, notably his plea for more flexible standards of attribution.[18] The flexible approach as suggested, though seized by the US and Israel- because it seemed convenient to them at that point- is yet to be established firmly in international law. Till that happens, employing the notion of complicity, it seems, may be described as aggression.
(ii) Threshold Requirement
The second element of the self- defence regime is threshold requirement. The jurisprudence developed by international courts seems to have made distinction between ‘less grave form’ and ‘more grave form’ of use of force. In the Oil Platforms case,[19]it expressly affirmed such distinction. This implies that state resorting to self- defence has to satisfy that attack carried out against it is of nature that will qualify as large scale attack. But the world court is having second thought on this. In DRC-Uganda Case[20], insofar as it held that self-defence could be directed only against ‘large scale attacks, it left open the question- whether states could respond to ‘attacks by irregular forces’.
Even a survey of state practices suggest that States have never given up their rights to respond in case of breaches which by themselves may not qualify as ‘grave form of attack’ as hinted in Nicaragua case. The emerging trends suggest that states are willing to move beyond threshold requirement suggested in Nicaragua judgment in favour of “accumulation of events” doctrine. This doctrine suggests that with respect to the threshold requirement, it must be assessed whether a series of minor incidents, taken together, can be said to reach the threshold of an armed attack.[21]
It is to be noted that the doctrine was much discussed by the litigants in the Cameroon- Nigeria, DRC-Uganda, and Oil Platforms cases, but the Courts in the respective cases did not pronounce on the matter. This doctrine gives comfort to those who have long criticized the gap between article 2(4) and artice 51, but still has not yet found firm place in international law. Alternatively, Judge Simma in Oil Platform Case favoured “proportionate defence measures” in place of ‘accumulative doctrine’ to fill such gap.
The above arguments, however, are not conclusive that threshold requirement expounded in Nicaragua case is no longer hold good. This is mainly for two valid reasons. One, that ICJ yet to give an authoritative judgement on the matter holding ‘accumulative events’ or ‘proportionate defence’ doctrines valid in context of article 51, and two, that self- defence right is defensive in nature and cannot extend to perpetuity waiting for events to accumulate.
(iii) Defensive Nature of Right
Debates in recent times have centered on conditions under which states can invoke self- defence right. But the scope of the right itself is undergoing dramatic changes. In particular, recent practice seems to have largely abandoned the functional understanding of self- defence as a protective means of ‘repelling armed attacks’. This in turn raises doubts not only about the time limits of self-defence, but also about the inherently defensive character of the right.
The traditional understanding of self- defence right is that response to use of force must have immediacy requirement. Even one accepts the broader notion of ‘armed attack’, yet response by the affected state must be immediate and defensive in character. But the recent state practice, particularly Operation Enduring Freedom launched by US after 9/11, does not satisfy above requirement. The Operation was initially based on a broad and defensible reading of Article 51 of the Charter. But it has now turned into a self-perpetuating military campaign serving a range of objectives. It is submitted that the campaign has clearly overstretched the boundaries of even the broadest understanding of self-defence. The recent killings of Yemeni leader Al- Alwaqi and Al- Qaeda founder Osama- Bin- Laden, based on permanent state of self- defence does not hold good in international law. One can only hope that this remains an isolated event and not emulated by other nations, particularly by those who have veto power in the Security Council.
A Way Forward
A dispassionate reading of the recent state practices [22]and Security Council Resolutions suggest that rules on use of force in the context of terrorism are on the verge of change. If one accepts that these rules needed some re- adjustment, then they must change for better. But the challenge before international community lies in making the rules universally applicable and adding a bit of certainty it. The more immediate challenge before international lawyers and political leaders is to resist the tendency to offer justification for use of force against terrorism in self- defence based on unilateral threat perception.
Now the bigger question arises what should be the strategy of international community in dealing with international terrorism wherein some of the states are found aiding and abetting terrorism. At the outset it must be mentioned that the validity of existing legal framework of self-defence must be reaffirmed. It would be counter-productive to an expansive doctrine of ‘accumulation of events’ as proposed by many commentators and justified by states. This is not to say that the existing framework is perfect. The application of the decision of the ICJ in the Nicaragua case must be reconsidered in cases of State support for terrorism. In cases where an armed attack has been launched by a terrorist group or is imminent, it should be possible to use force in self-defence against a ‘harbouring’ State provided link between terrorism and the State harbouring it must be accepted by international community. But it is still better to develop some new strategies, outside self- defence framework, to deal with such scenarios.
A. Comprehensive Convention Against International Terrorism
The best option before the international community is to adopt legal instruments dealing with acts of terrorism. However, any such instruments can only be helpful, if agreed by maximum number of nations, if not by all. India has presented a proposal to the United Nations General Assembly for a comprehensive convention against international terrorism, which has been unsuccessful due to the failure to agree on the scope of the Convention.
The definitional impasse has prevented the adoption of a Comprehensive Convention on International Terrorism.[23] This convention would complement the existing framework of international anti-terrorism instruments and would build on key guiding principles already present in recent anti-terrorist conventions- the importance of criminalization of terrorist offences, making them punishable by law and calling for prosecution or extradition of the perpetrators; the need to eliminate legislation which establishes exceptions to such criminalization on political, philosophical, ideological, racial, ethnic, religious or similar grounds; and emphasis on the need for Member States to cooperate, exchange information and provide each other with the greatest measure of assistance in connection with the prevention, investigation and prosecution of terrorist acts. In addition to UN efforts, a number of regional efforts are on way to check this menace.
While the broad consensus among nations is proving elusive, it is important that Counter Terrorism Committee, established under SC Resolution 1373 (2001) continues its work in preparation of model law. Further, it is the duty of the Council to see that its recommendations are implemented by all nations. The members of the Council, especially permanent members, must use its influence in building consensus.
B. Criminal Law Strategy[24]
The second option, though seemingly less optimistic in present scenario, is internationalization of fight against terrorism. The international policy against terrorism should require the states to accept a broader range of obligations relating to the treatment of terrorists and terrorist organizations.
There are two way to achieve this. One way is to model such Criminal Conventions on the principle of subsidiary universal jurisdiction so that it is the duty of each state to ensure application of rule- ‘aut dedere, aut judicare’. According to this rule, the arresting State has a choice between prosecuting or extraditing the criminals. It is obliged to opt for one or the other and cannot simply wash its hands of criminals found on its territory. Another way is to model such Convention on Rome Statute. Such Convention may establish international judicial bodies competent to prosecute terrorist activities – may be eventually even a ‘terrorism chamber’[25]of the International Criminal Court.
A well-crafted multilateral regime, based on enhanced duties to criminalize and prosecute terrorist activities, arrangements for cooperation in criminal matters, as well as in the fight against financiers of terrorism, is a key in achieving success to root out terror. In addition, one might hope that such regime also includes safeguards protecting individual rights of terror suspects.
C. Greater Responsibility on Security Council
Lastly and most viable option is that the Security Council should be more willing to take grater responsibility in dealing with anti- terrorism measures, as it has wider implications on international peace and security. The collective security regime of Chapter VII of the UN Charter is vital in addressing threats to international peace and security. The Security Council remains an indispensable forum for deliberation. Disturbing failures notwithstanding, the Council is the only plausible source of legitimation for the collective use of force.
The question then boils down to reform of the Council as the present functioning of it, leaves much to be desired. Even if structural reform to the Security Council proves elusive, the Secretary-General’s Panel on Threats, Challenges, and Change represents an immense opportunity to develop criteria to guide the Council in decisions on the collective use of force.
The different options presented above are not mutually exclusive. In fact the emerging practices suggest that the states are open to all kind options in the fight against terror. They must nevertheless, of course, act in compliance with the law, and in particular with international law, of which various areas are relevant: the aw on the use of force, criminal law, humanitarian law and human rights.
Conclusion
The above discussion suggests that the law governing anti-terrorist force is in a process of change. The international consensus, as it is emerging, requires state cooperation or active state conduct against terrorism. International law now accepts that the fight against terror may require the use of extraterritorial force, but possibly also outside it. But this practice remains centered to NATO fight against terrorism and is not applicable to terrorism faced by other countries including India.
The emerging consensus on the NATO action against terrorism has put pressure on the traditionally restrictive regime of self- defence. This pressure has affected the interpretation of exceptions to the ban on force. This construction may be helpful in shaping international policy that denounces terrorism in all form.
However, there is downturn risk to it. The broadly construed exceptions to the ban on force may be abused to the extent of giving expansive interpretation to self- defence or even to accept ‘retaliatory self-defence’. The recent practice of the states, particularly US action aftermath 9/11 borders on reprisals to disproportionate exercise of self- defence. If any other countries were to rely on such broad construction of such regime, it would lead to subversion of world order.
This is not to suggest that no changes are required in the existing framework that handles anti- terrorism measures. In fact new threats of 21st century require new methods to cope with that. After all, Security Council Resolutions 1368 and 1373 reflect change in that direction as for the first time international community joined in unconditional condemnation of terrorist activities. Hence we should not shy away from the change itself. But any such changes among other things should include a consensus on underlying principles, a relative equality of actors within the system, and a level of trust sufficient to make co-operation possible.
[1] SC Res. 1368 (Sept. 12, 2001) and 1373 (Oct 7, 2001).
[2] Anwar al-Awlaki killed in Yemen – As it Happened, available at http://www.guardian.co.uk/world/blog /2011/sep/30/ anwar-al-awlaki-yemen-live
[3] Shaw, International Law, 4th Ed, p.1048. He has cited many examples where the states have in the past actively used this policy to achieve political ends.
[4] It need not be repeated that the UN was created to maintain international peace and security. The challenge of terrorism increasingly threatens the framework of international security. Also see, SC Res. 1368 (Sept. 12, 2001)
[5] General Assembly resolutions, such as the Declaration on Principles of International Law (GA Res. 2625 XXV 1970) and the Definition of Aggression (GA Res. 3314 XXIX 1974)
[6] The ICJ in Nicaragua case came close attaining Jus Cogens status to use of force. See, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) [1986] ICJ Rep 14.
[7] Also see, Regional Arrangement Chapter VIII, UN Charter
[8] ‘Acts of deterrence’ in this context refer to the use or threatened use of force for political purposes. They entail increasing military strength of a state in order to be prepared to inflict unacceptable damage on an aggressor and making sure that the potential aggressor is aware of the risk, so that he refrains from aggression. Thus, ‘acts of deterrence’ include actions by which governments threaten an immense retaliation if attacked, such that aggressors are deterred if they do not wish to suffer great damage as a result of an aggressive action.
[9] R. Jennings and A. Watts, Oppenheim’s International Law, Volume I (1992), p. 421.
[10] International order in a globalizing world, By Yannis A. Stivachtis, Retrieved from Google Books.
[11] Also See, Oil Platforms (Iran v United States of America), International Court of Justice, Judgment (Merits) of 6 November 2003, ICJ Reports 2003, p. 161.
[12] Syria, Guyana, Pakistan, Spain and Yugoslavia were the non- permanent members which opposed Israeli action.
[13] Caroline incident refers to the British attack in 1837 on a vessel owned by US nationals, Caroline, on the basis of its alleged support to the anti-British insurgency in Canada and with a claim to right to self-defence.
[14] These measures related to curbing finances of terrorism, freezing the financial assets of terrorist organization, imposing travel bans, etc.
[15] Charney, J, The Use of Force against Terrorism and International Law, AJIL, Vol. 95, No. 4, p. 840
[16] See, Ruys, ‘Quo Vadit Jus ad Bellum? A Legal Analysis of Turkey’s Military Operations against the PKK in Northern Iraq’, 12 Melbourne J Int’l L (2008),p. 337
[17] The effective control test has also been incorporated in Draft Articles On State Responsibility by ILC, See especially Art. 8 (‘Conduct directed or controlled by a State’). In the commentary thereto, the ILC makes extensive reference to the Nicaragua judgment, thus acknowledging the origin of the effective control test.
[18] See Dissenting Opinion of Judge Jennings, Nicaragua Judgment
[19] Oil Platforms Case (Islamic Republic of Iran v. United States of America), Judgment of 6 Nov. 2003, [2003] ICJ Rep 161, Para. 291
[20] Armed Activities on the Territory of the Congo (DRC-Uganda case), [2005] ICJ Rep 201, para. 148
[21] This doctrine was explored in the article Cassese, ‘Terrorism Is also Disrupting Some Crucial Legal Categories of International Law’, 12 EJIL (2001) 993
[22] See Lobel, ‘The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan’, 24 Yale J Int’l L (1999) 537. This article surveys the existing state practices in dealing with terrorism as came out from their governments’ statements before various international for a.
[23] Organization of Islamic Conference does not agree on the definition given in the draft. It insists on making distinction between terrorists and those fighting for freedom.
[24] See, R Higgins and M Flory International Law and Terrorism (London Routledge 1997), at 28.
[25] This is proposed by Guillaume G, in his Article Terrorism and International Law, The International and Comparative Law Quarterly, Vol. 53, No. 3 (Jul., 2004), p. 537.