2nd Draft Dissertation - The invasion of Afghanistan, The Iraq conflict, and The dubious legality of Guantanamo bay.
CONTENTS
INTRODUCTION
i) Abstract -Page 2
ii) Is This A Real War? - Page 4
CHAPTER 1 - THE INVASION OF AFGHANISTAN
i) The Security Council Resolutions - Page 7
ii) The Use of Force under the United Nations Charter - Page 9
iii) Customary International Law and the Right of Self Defence - Page 13
iv) Does The Afghanistan War Conform To The Caroline Formula? - Page 15
CHAPTER 2: THE IRAQ CONFLICT
i) Self Defence - Page 21
ii) Humanitarian Intervention - Page 23
iii) The Breach of UN Resolutions - Page 25
CHAPTER 3:THE DUBIOUS LEGALITY OF GUANTÁNAMO BAY
i) "Law Amid The Clash Of Arms" - Page 31
ii) International Conventions - Page 34
iii) Constitutional Issues - Page 38
iv) What Alternatives Are There? - Page 42
CHAPTER 4: CONCLUSIONS
i) The United States and International Law - Page 44
ii) Alterative Methods to Deal With Terrorism -Page 45
a) Exhaustion of Diplomatic and Peaceful Remedies - Page 46
b) Collective and Multilateral Action - Page 46
c) The Charter Post-9/11 - Page 47
d) Inter-State Co-operation - Page 48
APPENDICES
a) List of Treaties Used In Text - Page 51
b) List of Statutes Used In Text - Page 51
c) List of Cases Used In Text - Page 51
d) List of Abbreviations Used In Text - Page 53
e) List of Websites Used - Page 53
f) Bibliography - Page 54
INTRODUCTION
i) Abstract
"Sovereign capacity is incapable of legal limitation" - John Austin1
This is the apparent assertion made by the American government today in their conduct towards international legal norms since September 11th. National security and the war on terror have come to define the Bush administration but it has done so at the expense of respect for the rule of law. As this thesis will argue, the United States have attempted to develop new doctrines regarding self-defence and the use of force which mark a distinct departure from the well-established norms of public international law in their response to the post 9/11 terrorist threats. It will become clear that these terrorist threats are not new or surprising, yet they have been seized on by the United States to justify their policy decisions and strengthen its position as the solitary global superpower.
Firstly, This thesis will argue that the classification of this crisis as a war on terrorism is fundamentally flawed as one cannot declare a formal war against an ideology that is widespread throughout the world. It is more akin to the political rhetoric of Reagan's 'war on South American drug barons'. Such emotive language may be popular amongst the electorate but cannot be justified in legal terms because of the strict rules of the doctrine of war. Secondly, this thesis will analyse the events that led up to the invasions of Afghanistan and Iraq calling into question the Allied Forces grounds for invasion through a consideration of the relevant principles of public international law. In relation to Afghanistan, this thesis will question whether this was a suitable target to strike at a cross-border terrorist organisation. The widespread support for this war was generated from Post-September 11th sympathy; it will be argued that this has been exploited by the Bush foreign policy in order to reaffirm American dominance as a superpower state. This thesis will contest the new Bush Doctrine of self-defence and its tenuous invocation in the Afghanistan and Iraq conflicts. It will be argued that the case for war was unconvincing, with both the US and UK governments unable to agree on the primary justification for the invasions. Threats of imminent armed attack, Iraqi support for terrorism, humanitarian intervention, regime change and the threat of "weapons of mass destruction" have all been cited at some point. It will be argued that whilst the removal of the Iraqi dictator was desirable, the Allied intervention lacked substantive adherence to the principles of international law. It is highly likely that economic considerations were paramount in both invasions. This thesis will underline the problems that emerge when a single superpower dominates the world. It will be submitted that the current American administration' very selective approach to international and humanitarian law is in fact more dangerous than any supposed terrorist threat. The far-reaching influence of America means that very dangerous precedents are being set. Furthermore, it will argued that their allies support their actions based on political, diplomatic and economic considerations rather than a shared opinio juris2. It appears that a commonly recurring theme throughout this 'war on terror' is the constant erosion of civil liberties in the name of security, highlighted by the use of Guantánamo Bay as a detention centre. This thesis will contest the legality of such use of the military base, arguing that both the American Constitution and the Geneva Conventions should apply. If States can pick and choose which laws they will respect, then what is the point of having law in the first place? In the immediate aftermath of September 11th, these acts were deemed reasonable and necessary. Governments had to be seen to be doing something in to close the gaps in national security so ruthlessly exploited by the hijackers.
ii) Is This A Real War?
Defining the fight against terrorism as a 'war' is a false definition, it should be seen as political rhetoric that pandered to the immediate calls for retribution3. In the subsequent days after the 9/11 attacks, opinion polls supported an immediate retributive strike on the perpetrators4. The war on terror is no different from a war on crime or war on drugs. It is ludicrous to suggest that the full rules of engagement should apply to tackling these problems. Oppenheim's attempt at defining 'war' is viewed as the classic definition.
"War is a contention between two or more states through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases5"
Oppenheim makes several relevant assertions on this issue. For current purposes, he argues that a war requires engagement between two states. Al-Qaeda6 is not a state, nor does it operate within a single state. It is a wide spread cross-border terrorist organisation and it is this global nature of Al-Qaeda that makes the selection of one state as the target for military action problematic. The idea that the only true war can be an inter state war has been reflected in modern jurisprudence in the Nicaragua case7. The ICJ ruled that the use of armed force by the Nicaraguan government against the contras as one "not of an international character". The contras were an opposition group financed, trained and organised by the United States. The judgement in Nicaragua appears to suggest that actions against non-state actors do not come within the meaning of an armed conflict as proposed by Oppenheim. The contras bear similar characteristics to Al-Qaeda, mainly that they were an underground guerrilla group seeking to influence a government through a campaign of violence. Despite their similarity, one can detect an inconsistent approach in US policy towards such groups. The message appears to be that when a terrorist organisation shares the same interests as those of the United States then the vitriolic condemnation afforded to Al Qaeda will not be forthcoming8. Importantly the case underlines that war in the strict legal sense cannot be waged on a group of terrorist paramilitaries and that the assistance and support for mercenaries could be equivalent to an armed attack9. However, the Court did not say that acquiescence towards a paramilitary group, as the Taliban did in Afghanistan, is equivalent to an armed attack hence the waging of a war against a non-aggressive state actor is highly questionable10.
The operations in Afghanistan and Iraq were not entirely a reckless reaction to 9/11; it is submitted that they were long-term targets to fulfil economic ambitions that could be perfect scapegoats in the aftermath of 9/11. As early as 1998, both the Congress and the Senate passed the Iraq Liberation Act11 citing a number of reasons for removing Sadaam Hussein. In Bush' National Security Strategy of 200012 singled out Afghanistan and Iraq as threats to national security but it was 9/11 that provided the perfect pretext for the United States to reassert its authority within the world order and exploit the large quantities of oil and gas resources of the two countries.
CHAPTER 1: THE INVASION OF AFGHANISTAN
i) The Security Council Resolutions
Resolution 136813 cites the Security Council' initial position on the 9/11 attacks. Schmitt and Greenwood have argued, in light of the preamble, that this resolution permits the legality of the bombing of Afghanistan. However the preambles of Security Council Resolutions are not binding, they provide the context in which one reads the resolution. Furthermore, the preamble of 1368 merely confirms the existence of an inherent right of self-defence, in accordance with Article 51 of the Charter, but does not relate it directly to the attacks on New York. It is implausible to suggest that the Security Council would not have been so careless in the drafting of the resolution as such a sensitive time to allow the carte blanche right to attack that Greenwood interprets from the text. Sections (3) and (4) of the resolution call on states to cooperate more fully with each other in order to combat terrorism. It is arguable that this was a deliberate acknowledgement of the dangerous precedent the Security Council would have set itself14. If the resolution were to hastily allow the use of force without deliberation would legitimise the use of armed reprisals. Armed reprisals are have been disapproved by international law15 and to permit them would directly undermine the very spirit of the Charter16. Greenwood has misquoted this resolution in order to give effect to such a proposal. Section (5) of the resolution is an expression of the Security Council' readiness to "take all necessary steps to combat terrorism". This was not, as Greenwood has suggested, an invitation for states to take all necessary steps.
Resolution 1373 is ambiguous and confusing as appears to extend the mandate set out in 1368. In the preamble, the Security Council reaffirms "the need to combat by all means, in accordance with the Charter, threats to international peace and security". The problem is posed by section 2(b) of the resolution, taken under Chapter VII and therefore binding. It reads, "States shall...take the necessary steps to prevent the commission of terrorist acts". Michael Byers has argued that this should be read restrictively17. An expansive reading makes this a potentially open-ended justification for the use of force in combating terrorism. If the United States had placed their justifications for attacking Afghanistan on this text, other countries may also have tried a similar tactic that could only be detrimental to the interests of international peace and security18. In an attempt to avoid this, the United States argued their actions were within the boundaries of self-defence as in Article 51 of the Charter.
The context of these Resolutions is better understood though an appreciation of Resolution 126719. Paragraphs 1 and 2 requested that the Taliban ceased to provide a safe haven for international terrorists and immediately hand over Osama Bin Laden. Failure to comply had clear consequences for the Taliban which were outlined in Paragraph 4, but the use of force was not included. This indicates that there was no consensus on using force to suppress the terror network of Bin Laden. This Paragraph stated that the measures imposed would be a landing embargo on all Afghan airlines and the freezing of funds and other financial resources. Paragraph 7 "calls upon all states to act strictly in accordance with the provisions of the present resolution". As the use of force was not provided for in Paragraph 4, any use of military coercion would be a breach of the obligations under Paragraph 7. It is clear when the United Nations intends to authorise force; it would be absurd to allow states to engage in military operations based on legal technicalities. This is shown through a comparison of the Resolutions discussed above and the Resolution that permitted an attack against Korea in 1950. "(This Resolution) authorizes the unified command at its discretion to use the United Nations flag in the course of operations against North Korean forces20".
ii) The Use of Force under the United Nations Charter
There are two systems, which govern the use of force in International law. Our `starting point should be the Charter of the United Nations. Article 2(4) of the U.N. Charter21 provides for a general prohibition on the use of military force. There has never been an opinio juris amongst all United Nations members on the extent of this provision. Although no government has expressly denounced the provision, the mere number of post-war conflicts since Article 2(4)' enactment show that modern governments do not take this provision seriously. For example; the British did not see it fit to refrain from invading the Falklands or the Suez Canal simply because of their obligations under Article 2(4) of the UN Charter. It is perhaps better that this article is viewed as a noble attempt by the draftsmen to avoid a repetition of the atrocities of the Second World War22. In acknowledgment of this, there are two exceptions under the Charter for the use of force. The exceptions involve either the use of force in necessary self-defence under Article 51 or an authorisation from the Security Council in order to maintain or restore international peace and security under Chapter VII23. In the absence of the Security Council backing sought, both the United States24 and The United Kingdom25 firstly cited article 51 as the legal grounds for attacking Afghanistan.
What are the limits of Article 5126? There appears to be two polarised camps: the Restrictionist camp and the Expansivist camp. Restrictionists argue that Article 51 should be given its ordinary, literal meaning and thus eliminating any possibility of anticipatory self-defence. When this provision was drafted, the world order was vastly different from that of the post 9/11 era. States can attack each other within a matter of minutes owing to the advancements in technology. Sir Humphrey Waldock has argued that "it would be a travesty27" to interpret the U.N. Charter as a suicide pact. Should the USA therefore have waited for the next destructive attack before launching strikes? Expansivists would answer in the negative. However, this assessment is equally flawed as this would give the Charter Signatories an almost free licence to decide when they face sufficient threat of attack, and hence to permit potential abuse of the draftsmen' original intentions. "It is as if the law were to leave to the 2 drivers in a motor vehicle collision, the sole responsibility for apportioning liability, helped only by the unruly crowd gathered at the scene of the accident"28. Thomas Franck highlights the fact that the Charter has no system for determining whether an act of aggression has occurred, and it is left up for the states themselves to decide. It appears that despite the Charter' promulgation, one finds a very flexible attitude towards the use of force; an attitude that the Charter sought to eradicate in the interests of world peace. The United Kingdom and The United States have clearly exploited this lacuna in the Charter when seeking to justify their attack on Afghanistan.
The second assertion of legality by the United States and the United Kingdom29 was made under Article 5 of the NATO Treaty 1949. This Article provides that an attack on one of the NATO members shall be considered as an attack on all members. However, such a provision cannot legally justify an invasion of Afghanistan, as the NATO Treaty is subservient to the UN Charter. One should read Article 5 of the Treaty with Article 103 of the UN Charter, which provides that "in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail". The effect of Article 103 is to confirm the legal superiority of the UN Charter in international law and thus make any claim to legality based upon Article 5 of the NATO Treaty invalid30.
As this thesis has outlined, Al-Qaeda is a non-state actor. As the Charter applies only to state signatories, one would need to establish a causal nexus between the Taliban and Al Qaeda otherwise further doubts are cast upon the decision to target Afghanistan for military action. Jeremy Carver31 argues that "the international world is made up of borders defined by states and not governments, therefore states are responsible for everything and everybody within its borders32". This argument appears to ignore the doctrine of effective control. British policy has been that de facto recognition of a regime will exist when the government displays "effective control over most of the State's territory and that this control seems to continue"33. In the case of The Arantzu Mendi34, Lord Atkin described the doctrine of effective control as when a government is able to exercise "all the functions of a sovereign government, in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of the inhabitants of the territory to one another and to the government35". This is clearly not the case with the Taliban. Indeed the Coalition recruited many soldiers from the Northern Alliance, exiled from Kabul since the rise to power of the Taliban. Warlords, such as Bin Laden himself, controlled other areas of the country. It would be hypocritical of the Alliance to have previously refused to recognise the Taliban as the effective government of Afghanistan, then after 9/11 hold them liable for activities that allegedly took place on their territory36. If up until 10th September 2001, the Taliban did not have effective control, it is unjust that they should be liable for the activities of foreign national paramilitary groups when not substantially involved in those activities. Indeed journalists reporting within Afghanistan noted that outside Kabul, Afghanistan was largely lawless37.
.
iii) Customary International Law and the Right of Self Defence
The conflict and contradictions within the Charter have perhaps contributed to the United States and the United Kingdom 'going it alone' in the post 9/11 conflict. It is clear that the Charter' rigorously formalistic approach was never going to appeal to the Bush Administration. However, customary international law is an alternative, more fluid source of law that evolves with state practice in order to reflect current values in modern international relations. The invasion of Afghanistan could be legitimised if there was an established customary international legal norm permitting such an invasion. Self-defence in customary international law traces back to the Caroline Case38. In 1837, the Canadian Rebellion took place with the assistance of a U.S. militia of one thousand troops. During the night of 29th December 1929, the British seized the Caroline vessel and sent her over Niagara Falls. The United States rejected British claims of self-defence. Daniel Webster, the U.S. Secretary Of State, in the diplomatic correspondence that ensued, emphasised the criteria that he believed needed to be shown. "It is for (Her Majesty's Government) to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation...it will be for it to show, also, that (they) did nothing unreasonable or excessive, since the act justified by self-defence must be limited by that necessity and kept clearly within it".
At the core of this customary doctrine are the basic requirements of necessity, immediacy and proportionality. Some jurists argue that this concept is too rigid and formulaic and that it is not an accurate reflection of modern day warfare. Sofaer argues39that we require "a more nuanced evaluation than that implied by Webster's pronouncement" and that "to deprive the International community of a reasoned basis for using force threatens Charter interests and values, rather than supporting and advancing them40". Sofaer supports a case-by-case approach to the self-defence doctrine, particularly in relation to pre-emption. However, this reasoning is unsatisfactory. Firstly, the ICJ in recent jurisprudence has expressly approved the Caroline case41. This is a clear indication that the customary rules on self-defence survived the adoption of the U.N. Charter, and were not extinguished by it. Furthermore, surely an essential principle of law is that of certainty. Sofaer in his support for the anticipatory doctrine endorses the uncertain and the unknown. If customary international law was to evolve in the direction suggested by the Bush Administration, it would be contrary to the global interest as anything other than a strict standard would give leeway to retaliatory action rather than upholding the original intention of the self-defence doctrine42, that is to say protecting one's citizens and maintaining national security.
iv )Does The Afghanistan War Conform To The Caroline Formula?
The attack on Afghanistan certainly was not immediate. Yoram Dinstein has argued that there should not be an undue time lag between the original attack and the response43. The bombing of Afghanistan started on October the 7th - almost one month after the September 11th attacks. However, Dinstein concedes that one needs time for diplomatic negotiation. It would be unwise to insist that Webster's test is so rigorous that the military response should have been launched on September 12th.
The immediacy of an armed attack will dictate the necessity of any response. It is submitted that the Allies were not thwarting any further attacks by attacking Afghanistan. It is clear that Afghanistan, as one of the world's poorest countries, did not pose any immediate threat to the United States or her allies. Secondly, Al-Qaeda is a cross border organisation so it seems curious that Afghanistan was the choice of target. Other countries too have had Al Qaeda operatives amongst their citizens44. Even the greatest ally of the United States, the United Kingdom, has the largest Al-Qaeda base in Western Europe. European intelligence showed that in fact the planning stages took place in many other countries but not Afghanistan45. It is argued that Afghanistan was an easy target - a victim of Bush' political aims. As Richard Falk writes, "the necessity for war in the context of Afghanistan seemed at the time compelling...reinforced by the patriotic fervour in America46". It is submitted that military action was always going to be the option taken by the US and that the faux-diplomacy leading up to the war was merely a front of legitimacy. This is shown by the fact that Pakistan had brokered a deal with the Taliban to hand over Bin Laden to the US, but the White House rejected this proposal47. It appears difficult to maintain that the economically decrepit Afghanistan could have become "substantially involved", to paraphrase the Nicaragua judgement, with Al Qaeda.
Jeremy Carver48 argues that "the international world is made up of borders defined by states and not governments, therefore states are responsible for everything and everybody within its borders49". The claim that Afghanistan should bear the responsibility for the actions of the hijackers is unjust, in the light of the fact that the Taliban did not have effective control of the whole country, and consequently it did not control Al-Qaeda. It is a clear standing principle of international law that states should only be liable for the actions of state agents, reflected in the International Law Commission' Draft ...
This is a preview of the whole essay
Jeremy Carver48 argues that "the international world is made up of borders defined by states and not governments, therefore states are responsible for everything and everybody within its borders49". The claim that Afghanistan should bear the responsibility for the actions of the hijackers is unjust, in the light of the fact that the Taliban did not have effective control of the whole country, and consequently it did not control Al-Qaeda. It is a clear standing principle of international law that states should only be liable for the actions of state agents, reflected in the International Law Commission' Draft Articles on Responsibility of States for Internationally Wrongful Acts50. These articles have been cited in numerous cases, indicating that they are now part of customary international law51. The actions of Al-Qaeda do not satisfy the Article 8 test proposed by the International Law Commission as the assertion that the Taliban were in complete control of all terrorist cells within Afghanistan appears somewhat tenuous and unrealistic- it must be "effectively proved that the person or persons had really been charged by the state organs to carry out that specific act52". It is submitted that the Taliban failed to meet the criteria of Article 11 as they never attempted to claim responsibility for the September 11th attacks53, and thus it is not possible to argue that the attacks were state-sponsored. In the Nicaragua case, it was held that the United States' financing, equipping and training of the contras was insufficient to establish liability for the acts of violence committed by the contras as being state-sponsored. The Taliban involvement was to an even lesser extent than the Americans were in Nicaragua. Even under the lesser threshold of overall control set out by Tadic54, it is impossible to find the Taliban liable. The reason is that the Taliban did not have any control over Al-Qaeda, it must be something more substantial than encouragement or sympathy with the armed group' cause55. The Taliban displayed mere acquiescence, which although this was a breach of resolutions 133356 and 1373, it does not immediately give rise to a use of force as a penalty for the alleged breach of their state responsibility57.
There is an example of previous practice that has been set by the Security Council concerning the use of force against countries harbouring terrorists. In October 1985, Israel bombed the headquarters of the PLO in Tunisia. Proposing a similar argument to the U.S. vis-à-vis Afghanistan, Israel asserted that the attack was justified as Tunisia knowingly harboured terrorists, who were plotting to attack Israel. The Security Council by a margin of fourteen to zero, with only the United States abstaining, in Resolution 573 rejected this assertion. The bombing was condemned "vigorously" as a "flagrant violation of the Charter of the United Nations, international law and norms of conduct". The resolution also confirmed that although "an international obligation may be breached through an act or omission, mere inaction would likely to be insufficient to give rise to state responsibility for the acts in this case". The new U.S. legal theory on state responsibility is dangerous and potentially destabilising to the global order. To allow a mere omission on the part of a state to permit recourse to force would undermine the very purpose of the Charter and is too excessive.
It is submitted that the principles of state responsibility in customary international law do not establish any culpability of Afghanistan. In Janes v. United Mexican States58, a Mexican national murdered a U.S. citizen yet the Mexican police authorities failed to commence any investigation into the crime. The court held by majority that the murder could not be attributed to Mexico merely for a failure to punish or investigate the suspect, "even if the non-punishment were conceived as some kind of approval...still approving of a crime has never been identical with being an accomplice to that crime59". Following this decision then potentially the United Kingdom could use force against the United States, in light of the fact that U.S. citizens have been involved in the funding and equipping of the IRA60. This reasoning is based on the Tehran case with the ICJ holding that states should exercise "due diligence" in conforming to the international obligations to protect the rights and security to other states. The court's view was that a state's obligation to exercise due diligence would be breached when that state was "aware of the need for action on their part" and "failed to use the means which were at their disposal61". This two-part definition of due diligence confirms the earlier decision in the Corfu Channel case, yet to impeach Afghanistan on this reasoning is to misunderstand the political situation of the country. The lack of a strong, centralised government makes the U.S. request that the Taliban eradicate terrorism from their territory wholly unrealistic. Barnett Rubin62 describes "a tribally based monarchy (that) oversaw a weak administration imposed on a mosaic of peoples not integrated into a common economy or nationality63". It should be remembered that the Russians failed in their ten-year attempt to root out terrorism from Afghanistan. The Bush Administration has shown an astonishing ignorance of Afghan history and politics in demanding the Taliban to do likewise within a matter of months.
Terrorism experts have commented that the funding for 9/11 originated from Saudi Arabia64. Curiously, the United States censored a Joint Intelligence Committee report that allegedly holds information that there are considerable links between the 9/11 operations and Saudi Arabia65. Fifteen of the nineteen hijackers had Saudi nationality, yet the United States seek to attribute the attacks to Afghanistan although no Afghan nationals were involved in their execution. Furthermore, it has been alleged that some member of the House Of Saud have directly funded Al-Qaeda, with payments made into the bank accounts of twelve of the hijackers66. It appears that Saudi Arabia have been involved to a far greater extent than Afghanistan. Saudi Arabia however has enjoyed good diplomatic and economic relations with the United States recently. The Energy Information Administration67 estimated that Saudi Arabia supplied the United States with 1.8 million barrels of crude oil per day in 2003 and that this makes up almost 20% of the United States' annual import. An attack on Afghanistan was easily justifiable in light of 9/11 and hence it gave the United States the opportunity to open up a new trading partner within the Middle East, thereby diluting the impact of any threat of an oil embargo by the Saudis.
In light of these arguments, one cannot reasonably argue that the United States and her allies have acted proportionate to the threat. Firstly, as already argued, there was no imminent threat from the state of Afghanistan. Therefore, the military action immediately becomes excessive and disproportionate. Secondly, Afghanistan was 'ruled' by an ineffective de facto government. Even if they wanted to suppress terrorist activity within their territory, it would have been near impossible to do so. Thirdly, a failure to act cannot be a justification for military action whereas positive complicity with Al-Qaeda could allow for such measures. In light of this lack of effective control, it was unreasonable of the United States to have adopted a strict no-negotiation stance over the extradition of Bin Laden.
CHAPTER 2: THE IRAQ CONFLICT
The recent military operations in Iraq have been highly controversial. The White House argued that Iraq forms part of "the Axis of Evil" of rogue states, that it supports terrorism and continues to develop "weapons of mass destruction68". Within the Bush Administration itself there have been many justifications offered in order to gain support for war. Were these reasons for the war justified? A large proportion of the world's media felt that these reasons were merely to provide a pretext in order to realise American political ambitions. Critics of the Administration argue that an American-friendly Iraqi government would soften the blow of any future disputes with the Saudi or Russian governments, two states from whom the United States purchase oil.
i) Self Defence
The justification for the invasion of Iraq began with a claim to an inherent right69 of self-defence70. It is debatable as to whether the attack on Iraq would fit within the Caroline boundaries despite the Administration' assertions that it is within the limits of customary international law. However, this assertion is manifestly ill founded, although it is not disputed that a right to anticipatory self-defence exists. State A would not have to wait for State B to launch a potentially fatal blow, before using force to respond71. The very essence of self-defence is that it is preventative. In the case of the first Gulf War, Kuwait activated the doctrine of collective self-defence by requesting Allied assistance to expel Sadaam's forces from its territory (FN). Saddam had used chemical and biological weapons against the Kurdish population in the north of Iraq with devastating results72. What the Bush Doctrine proposes is a doctrine of pre-emptive self-defence; that states should have the right to use military action to eliminate the possibility of future threats manifesting. Did Iraq have the military capacity to launch an armed attack on the United States in the near future? The United States did not allow Chief Weapons Inspector Dr Blix to answer that question in full. However, during their period of inspections, UNMOIVC found little evidence to suggest that any WMD programme was under way. Some commentators have argued that the Allies in fact did not want Blix to be successful as he could potentially undermine their case for war. Whatever the results of UNMOVIC investigations would have been, it is difficult to find any convincing legal authority to support the elasticity of the Bush doctrine. The justification of self-defence was heavily criticised by the media, academics, lawyers and politicians, perhaps explaining why it was quietly shelved during the propaganda campaign leading up to war.
ii) Humanitarian Intervention
"This is an evil man who, left to his own devices, will wreak havoc again...it is a very powerful case for regime change73".
This statement appears to an implicit suggestion to the doctrine of humanitarian intervention. Again, this is a highly contestable doctrine. Article 2(7) and Article 39 may be read expansively to permit such intervention, with the Security Council making a resolution under Chapter VII74. As Adam Roberts points out, every time it has been advanced without Security Council authorisation, it has failed to win widespread support75. Indeed in the wake of the Nicaragua76 judgement, the British government expressly denounced the doctrine as "the scope for abusing such a right argues against its creation77". One should recall the First Gulf War, when Sadaam had used chemical and biological weapons on his own people yet none of the Allies sought to rely on the doctrine, and thus showing the lack of opinion juris on its creditability. Most recently, it was used as an attempt to justify military intervention in Kosovo. Milosevic, like Sadaam, had been in breach of Security Council Resolutions78. The UN had declared Milosevic a threat to the peace and security in the region of the Balkans. It is clear that he posed no imminent threat to the NATO alliance. However the Alliance justified intervention on the grounds of Milosevic' ethnic cleansing policy. The doctrine is in blatant contradiction with the respect for "territorial integrity" required in Article 2(4). As this thesis has argued, Article 51 governs the use of self-defence therefore even the most Expansivist reading could not support the doctrine of humanitarian intervention. Whilst the abuse of human rights is reprehensible, the principle of sovereign equality and integrity must be upheld. A free licence for the western world to impose regime change upon 'undemocratic countries' would create an unstable world order. One could rely upon such a doctrine in order to justify intervention in China or Syria for example. To allow that would in effect be a return the Augustinian doctrine of 'the just war' - that it is lawful to wage war in order to eradicate 'evil'. In light of these arguments, it must absolutely be limited to instances authorised by the Security Council. These concerns were expressed in the Corfu Channel79 case, where the British Government asserted a right to intervene in Albania following the destruction of two of their warships. The ICJ held that "the alleged right of intervention...has in the past given rise to most serious abuses and cannot find a place in international law...it would be reserved for the most powerful states80".
If the Bush Administration wished to rely on the doctrine to use against Iraq then they needed to show that humanitarian intervention was a part of jus cogens81. However, it seems that there is insufficient state support for this doctrine to authorise an attack on Iraq. India, China and Russia have been openly critical of such a doctrine. The highly controversial nature of the doctrine is indicative in itself. It is the lack of opinio juris that would undermine such a claim under customary international law. As The U.S. Secretary of State, Strobe Talbott said concerning Kosovo; "the U.N. has lent its political and moral authority to the Kosovo effort"82. There is no mention of any legal support for the operation, it is a doctrine which appears to rely solely upon a positive moral basis. The UK government's stance in 1986 was that such a doctrine would be "prone to abuse" and so has no basis in law. One also must pose the question; why were the situations in Kosovo and Iraq so pressing, yet not Chechnya83? It is this inconsistent position of the United States towards the maintenance of human rights standards that manifests cause for concern. It is impossible to equate the nation that moulds itself as the defender of human rights, democracy and the rule of law and the one that so vehemently opposes initiatives such as the International Criminal Court and maintains the death penalty84
.
iii) The Breach of UN Resolutions
There was an agreed justification between the US and the UK. Bush did not face the highly critical media and public that Blair did85. This is why the Blair government had to place greater emphasis on Sadaam's alleged possession of WMD's in material breach of Resolution 678, adapted during the first Gulf conflict. The argument advanced by the Alliance was that the reading of this resolution with 687 and 1441, despite the failure of Dr Blix' inspectors to find any WMD has, reactivated the right to intervene in Iraq.
Resolution 67886 allowed UN Member States to uphold Security Council Resolutions by "all necessary means" and to "restore peace and security in the area". Paragraph 2 clearly shows that the permission to use force was only related to Kuwait. Kuwait is individually autonomous again since Sadaam withdrew his force after the first Gulf War. In effect, Sadaam has complied with the key demand to pull out of Kuwait. Surely, this should negate any recourse to force. Furthermore, it should be noted that the UN resolutions were specifically framed within a 1990 context; it is from this viewpoint that they are to be interpreted. This approach cannot justify the Allies reactivation theory. It is illogical to justify reactivation of 678 for an alleged material breach of 687. Paragraph 2 of 678 states that force may be required to restore "international peace and security in the area". Since the conflict with Kuwait has all but formally ended, there can be no inherent right to military intervention. The Security Council Resolutions make no provision for regime change and there has been no renewed call for help in collective self-defence from Kuwait.
The United States government has repeatedly attempted to link Iraq to Al-Qaeda, so to enlarge the potential for action within paragraph 2 of 678. Evidence had been slow in coming and most terrorism experts have wholly condemned this proposition. It should be noted that George Bush Snr's argument to the British Government for not imposing regime change in the first Gulf War was that Resolution 678 did not give them sufficient legal authority to do so. As one of his aides affirmed, "UN Resolutions did not authorise coalition forces to undertake anything other than the liberation of Kuwait87". The suggestion that this restrictive resolution could be prospectively reactivated to legalise an otherwise groundless war against Iraq is extreme. Although Security Council Resolutions do not repeal themselves, they do not provide open-ended, infinite authorisations for the use of force. They will expire when the perceived problem has been dealt with. Following the Bush interpretation could potentially permit action against Iran, Syria or any other member state that have previously been the subject of Security Council demands. Catherine Denis points out, to allow states to rely on Resolutions for an indeterminate time will undermine the very spirit of the Charter. A situation of potentially permanent conflict would be created88. Furthermore, Oscar Schacter has argued that in fact Resolution 678 is no more than an affirmation of the collective self-defence doctrine89.
Resolution 68790 imposed obligations upon Iraq. They have complied with the following demands. Firstly, they have rescinded annexation of Kuwait91. Secondly, in accepting the Resolution 687, they have accepted liability in principle. They also began to return Kuwaiti property. This Resolution also outlined Iraq's ceasefire obligations. Dinstein has argued that the maintenance of this ceasefire and the lack of a formal declaration of peace means that in fact this war is continuing toady, thus there is no need for the United States or the United Kingdom to offer further justifications for their actions. Dinstein's view is very much the minority view. The Alliance argued that the material breach arose from their non-compliance with the inspection and destruction of WMD programmes. In 1998, Sadaam Hussein demanded that the weapons inspectors leave the country. At the adoption of the Resolution, India expressed their objection that this would confer the power to take unilateral action in order to enforce previous Security Council Resolutions92. The Yemeni representative argued that he found that the possible use of force was excessive when founded on such minor legal technicalities93. The Namibia Advisory Opinion stated that the Security Council might act outside the Charter in the interests of international peace and security, yet States cannot simply select which provisions they will respect.
The US and the UK saw Resolution 144194 as the final chance for Iraq to comply with the Resolution 678. It outlined several declarations. Firstly that Iraq remained in material breach of Resolution 68795. Iraq was given a final opportunity to comply with her disarmament obligations96. An unhindered inspections regime was to be reinstated and carried out by UNMOVIC97 and the International Atomic Energy Agency98. A failure to comply with its obligations would result in "serious consequences"99. The interpretation has been a matter of dispute as to whether 'serious consequences' includes the use of force. As with the law of treaties100, it has been suggested that where there is ambiguity with a Security Council Resolution, one should look to the travaux preparatoires to understand the parties' intentions101. The question remains as to whether 1441 was ever meant to be an automatic trigger of force. Upon the adoption of the Resolution after a period of lengthy negotiation, France welcomed "the fact that...all elements of automaticity have disappeared from the resolution102". Russia stated "the resolution just adopted contains no provisions for the automatic use of force103". Ireland held that the resolution "provides for a clear sequential process...it is for the Security Council to decide any ensuing action104".
The UK and the US representatives had reassured the other members of the Security Council that there was no intention of an automatic recourse to force105. It is submitted that it this assurance by the Allies is what brought about the unanimous vote. The remaining three members of the Permanent 5 would have vetoed any attempt to obtain an automatic trigger for use of force against Iraq. However The US representative, John Negroponte also stated that the resolution does not "constrain any Member State from acting to defend itself against the threat posed by Iraq or to enforce relevant United Nations resolution106". The US clearly contradicted themselves within one short statement. It affirms that their preferred method of resolving the Iraq Question was by force. The failure of the UNMOVIC team to find any 'smoking gun107' severely undermines the proposition that Iraq posed any imminent military threat to the United States. The envisaged second resolution was circulated on the 24th February 2003, but obtained no support. UNMOVIC and IAE had not stated in any written reports that Iraq had made false statements of declaration with regard to WMD's. Despite the apparent consensus on Resolution 1441, the Allies launched an attack on Iraq in March 2003. This attack was clearly outside the boundaries of the UN Charter108, as governed by Article 2(4), Article 51 and Chapter VII109
. The language of 1441 was too ambiguous to amount to an express authorisation of force. This is why the US justification for war as evolved, altered and developed over time. It is the failure of 1441 to grant an automatic trigger to the use of force explains the logic of the United States' 'revival' theory. The United States was determined to go to war with Iraq; some have argued that there had been a long-standing timetable for an invasion. Both the US and the UK had been deploying troops in the Gulf Region since October 2002. It is submitted that the diplomatic process was merely a smokescreen, an attempt to legitimise the inevitable. An article published in 2000 by the neo-conservative think tank, Project for a New American Century argued that "while the unresolved conflict provide the immediate justification, the need for a substantial American force presence in the Gulf transcends the issue of the regime of Sadaam Hussein110". The Baker Institute of Public Policy prepared a report for the Bush administration in April 2001 asserting "the US remains a prisoner of its energy dilemma. Iraq remains a destabilising influence...to the flow of oil to international markets from the Middle East111". This evidence is more than circumstantial - it shows the lack of opinio juris in the United States' own actions in what is a clear attempt to cloak economic and political interests under the mantle of international law. Ian Lustick112 argues that "9/11...had nothing to do with Iraq but produced an enormous amount of political capital which allowed the government to do anything it wanted as long as they could relate it to national security and the Middle East113".
CHAPTER 3: THE DUBIOUS LEGALITY OF GUANTÁNAMO BAY
He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself114
Guantánamo Bay is the latest example of the United States' unilateral approach to foreign affairs and disregard for international norms. The Administration's failure to afford basic human rights and due process to the detainees has angered the international community. It has been argued that the United States are in violation of the Third Geneva Convention, international human rights law and even its own constitution.
i) Law Amid The Clash Of Arms
International humanitarian law is a form of natural law that transcends the borders of states115. The Bush rhetoric of the "war on terror" has not helped the situation. This played to the post 9/11 retributive psyche. The military commissions have been promised to "deliver prompt and effective justice". Is speed really of the essence? Slobadan Milosevic killed more people than Al-Qaeda, yet he got the benefit of an ad hoc tribunal. War crimes do not always necessitate military tribunals. In the case of the Lockerbie bombing, a criminal prosecution model was undertaken on neutral territory. Furthermore, 9/11 was not the first time that Al-Qaeda has attacked the United States. The first World Trade Center bombing in 1993 saw the prosecution in the civilian courts of Sheik Omar Abdel Rahman116.
The American argument is that in times of national security, such repressive measures are needed in order to protect civilians. However, it is highly objectionable that short-term security concerns should throw out democratic processes and institutions built up since the Declaration of Independence. As Lord Atkin said in the wartime case of Liversidge v. Anderson; "amid the clash of arms, the laws are not silent, they may be changed, but they speak the same language in war as in peace117". This dictum undermines the proposition made by certain members of the Bush Administration that law is suspended in times of crisis. This decision was quite radical for its time. Thirty years later, Lord Denning in Hosenball118 held that courts should not interfere in decisions of the executive. Under English law, the concept of parliamentary sovereignty adds weight to Denning's view. However, the Supreme Court of America is not restrained by such a doctrine; indeed its very purpose is to review decisions of the executive. Some have correctly argued that Atkin's dissenting judgement is not binding on any American court119. Lord Steyn points out that history suggests that Atkin's judgement was very accurate120. In 1988, Congress frowned upon the internment of Japanese Americans during World War II as motivated by "racial prejudice, wartime hysteria and a failure of political leadership121". In overturning a conviction of a Japanese American citizen122, Judge Patel advocated caution "that in times of distress the shield of military necessity and natural security must not be used to protect governmental institutions from close scrutiny and accountability"123. This judgement echoes the language of Atkin's dictum in Liversidge .v. Anderson, thereby showing the influence of his reasoning on this issue.
The Bush Administration has chosen to rely on the case of Ex Parte Quirin124. The case involved eight German soldiers who landed on U.S. territory with the intention of sabotaging war facilities in the United States. Upon arrival, the soldiers buried their uniforms to avoid detection. The Court upheld the employment of military commissions stating that "entry upon our territory in time of war by enemy belligerents...for the purpose of destroying property used or useful in prosecuting the war, is a hostile and warlike act". The establishment of military commissions had been authorised by Congress when it approved the declaration of World War II. War was not formally declared on Afghanistan, and as argued above one cannot declare war on an ideology. Furthermore, as David Cole underlines125, the saboteurs were correctly classified as enemy aliens. No Al-Qaeda operative held in Guantánamo Bay has ever entered U.S. territory. Indeed that is the very argument proposed by the courts in denying the detainees the protection of the Constitution and therefore the writ of habeas corpus126. It should be noted that Quirin was decided before the inception of international humanitarian law. It was the atrocities of World War II that encouraged the accord of the Geneva Conventions and thus one should read Quirin much more narrowly in the light of these human rights treaties. It is also unreasonable to use this case in order to define unlawful combatants, when that decision has such far-reaching effects internationally.
There are two different classes amongst the detainees of Guantánamo that is to say Al-Qaeda members and Taliban soldiers. Should the detainees be entitled to the protections of the Geneva Conventions? This will depend on their classification as either POW's or unlawful combatants.
ii) International Conventions
Article 4 (2) of the Geneva Conventions of 1949 outlines the criteria for non-state armies to satisfy in order to benefit from POW status. Firstly, (i) they must be under responsible command. (ii) They also must bear a distinctive sign or emblem distinguishing themselves from the civilian population. (iii) They should carry their arms openly and (iv) conduct their operations in accordance with the laws and customs of war.
It is clear that Al-Qaeda operatives fail to meet most of these criteria. Their operations by their very nature are covert and underground. However, as Derek Jinks argues127 the attacks of 9/11 violate the laws of war, hence it follows that Al-Qaeda operatives should be granted the minimal rights offered by the laws of war. The basis for this argument is founded upon Common Article 3. Jinks notes that Common Article 3 provides minimal protections for those taking no active part in hostilities. The Bush Administration argues that the Al-Qaeda operatives in their custody are not covered by Common Article 3 as they were involved in the conflict in Afghanistan. This proposition is highly objectionable when six detainees were illegally seized by the FBI in Bosnia-Herzegovina128. Harold Hongju Koh has argued that Al-Qaeda should be classified as POW's on policy grounds129. He argues that United States, in light of her position as an influential legal actor, should promote humanitarian norms of a civilised society rather than vengeance and retribution. As with the situations in Northern Ireland and Israel, internment has been highly counter-productive rather than acting as a deterrent. Alternatively, Lord Steyn has argued that Article 75 of the Additional Protocol 1 of the Geneva Convention if in fact now part of customary international law and thus these minimum standards must be applied to the Guantánamo detainees130. The Inter-American Commission on Human Rights, echoing Article 5 of the Geneva Convention, recommended that the United States "take urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by an independent tribunal131". However, these recommendations are not binding on the United States132. Yet Article 5(2) of the Conventions demands that when "any doubts arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal". It is submitted the status of the Taliban is more clear-cut as the government of Afghanistan was only recognised by a handful of governments, thus failing to satisfy the responsible command criterion. Secondly, the Taliban clearly distinguished themselves from the civilian population133.
It is also arguable that the detainees should be protected by the provisions of the International Covenant on Civil and Political Rights134 1966, which the United States ratified in 1992. It is impossible for any state to deny the minimum standards in light of Article 2(1) of the treaty and the absence of any valid derogation under Article 4135. Article 2(1) states that all State parties should "respect and...ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind". Article 1 of the Optional Protocol has altered this to read simply "persons subject to its jurisdiction". As argued above, it is clear that according to current international legal norms that Guantanamo Bay is within American jurisdiction. Furthermore, the Human Rights Committee136 have now affirmed this principle as part of customary international law. "The enjoyment of Covenant rights is not limited to citizens of State Parties but must also be available to all individuals, regardless of nationality...this principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory 137". On this reasoning, all of the Guantanamo detainees should be granted these basic legal rights.
Article 9(1) provides that "no-one shall be subject to arbitrary arrest or detention" except when such a procedure is established by law". The Human Rights Committee have commented that those subject to preventative detention must have access to a court in order to be able to challenge the legality of their detention138. Article 9(2) provides that all persons should have the right to be informed of the criminal charges against him or her yet the Guantánamo detainees have not been formally charged with any criminal offence in the two years that have been imprisoned there, the US Administration simply suspects that they are guilty of being terrorists. The Human Rights Committee has denounced such treatment as incompatible with 9(2). In Drescher Caldas v. Urugary, the Committee held that detention under "prompt security measures without indication of substance139" was a violation of the ICCPR. It should also be noted that in Lewis v. Jamaica140 that detention without trial lasting 23 months was unacceptable in light of the Covenant standards and the absence of a satisfactory explanation by the State. The US Administration have not offered any such explanation but only mere assertions under the guise of national security that the detainees are a threat to the American people. If the evidence is so compelling, it is difficult to comprehend why they have not been brought before a court of law. Some have suggested that because the detentions are so tainted by illegality that the US fear a political embarrassment if they lose any such case141.
Article 14 of the ICCPR provides the right to a fair trial, with several components within this provision that provide indicators as to what constitutes a fair trial. Article 14(1) demands that "all persons shall be equal before the courts and tribunals...everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law". It is implausible to suggest that the military forces that have detained the Guantánamo suspects are capable of dispensing independent and impartial justice. Furthermore, the military judges will be under intense political pressure from the White House to find guilt and hence avoid embarrassment for the American government. Indeed the Human Rights Committee has "serious doubts about the impartiality of military courts142" in trying civilians143. Article 14(2) states that "everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty". Such a basic standard has even been afforded to Slobadan Milosevic at his trial for mass genocide in The Hague144. The evidence against Milosevic is compelling, yet the international community saw it fit to allow this basic right to him in order to reinforce the democratic values that they share. It appears irrational therefore that the American government should prejudge the detainees' guilt where there is very little evidence to uphold such claims. As the Human Rights Committee have stated in their General Comment 13 that "it is a duty for all public authorities to refrain from prejudging the outcome of a trial". The President's continued reference to the detainees as 'killers' and 'bad people' is a flagrant violation of what is a norm of customary international law.
iii) Constitutional Issues
On 13th November 2001 George Bush, acting in his capacity as Commander-In Chief, issued a Military Order declaring that the United States was in a state of emergency. On this basis, he established military tribunals in order to secure prosecutions and keep classified information secret. A three-member panel appointed by the Secretary Of Defense will carry out any prosecutions. Only one of these members may be a lawyer145. A simple majority would be enough to secure the death penalty. The Administration has showed its lack of opinio juris in these commissions. The Department of Defense has offered differing reasons for these detentions. These reasons are as follows; interrogation, security needs and to secure prosecutions 146. There is no right of appeal to an independent court or tribunal, the only form of appeal is to President Bush himself147. As discussed in the previous chapter, the Administration argue that Al-Qaeda do not benefit from the basic legal rights recognised in the Geneva Conventions. However, American enemy combatants have been granted habeas corpus148. The Military Order specifically applies to non-citizens. Is this constitutionally valid? The founding fathers of the American Constitution envisaged that all men were created equal. In the case of Yick Wo v. Hopkins, the Court held that the Fourteenth Amendment is not exclusively applicable to United States citizens and that their rights are "treated equally with those of the strangers and aliens who now invoke the jurisdiction of the court149". The opinion of the court that non-citizens also benefit from the Constitution.
The argument countered by the Administration is that the Constitution does not apply as Guantánamo Bay is outside of its territorial jurisdiction. Who owns Guantánamo Bay therefore? In the Island of Palmas case150, it was held that peaceful and continuous display of State authority151 was equal to good title to sovereignty152. Under the terms of the 1903 lease from Cuba153, and also re-affirmed by a subsequent treaty in 1934154, the United States were granted "complete jurisdiction and control" whilst Cuba would retain ultimate sovereignty. It should be noted that the preamble of the lease states that Cuba had agreed to "the lease of areas of land and water for the establishment of naval or coaling stations155". In the absence of any agreement permitting such a detention centre, one must conclude that the United States is in breach of the lease. The lease may be terminated in two ways. Either unilaterally by the United States or by mutual agreement. At first glance, it would appear that the Administration's argument is justified in relation to what the lease states. At this point, one should refer back to the judgment of Huber in the Island Of Palmas Case. It is clear that Cuba have not exercised a peaceful and continuous display of effective state control since they leased out Guantánamo. The strong American military presence there means they have no way of re-claiming it even if the Cuban government wanted to. The clause that stipulates Cuba retains ultimate sovereignty is no more than a dead-letter term. It is sovereignty by name, not by law. It is submitted that it is legally erroneous to suggest that U.S. constitutional law is incapable of application beyond mainland America. For example, it would be implausible for the United Kingdom to deny the application of rights granted under the European Convention of Human Rights to a Gibraltan, which were afforded to mainland citizens, arguing that Spain retained absolute sovereignty.
How have the United States Courts reacted to the international criticism of Guantánamo? The judgement in Coalition of Clergy v. George Walker Bush156 is extremely conservative and unadventurous. It is submitted that this is probably to avoid an embarrassing conflict between the executive and the judiciary under the glare of the world media spotlight. Whilst the District Court of California follows the jurisprudence in Johnson v. Eisentrager157, there is not even an indication as to the Palmas case. Some might argue that is because since the Nicaragua judgment of 1986, the United States declared that they would not recognise the decisions of the ICJ. Indeed the Court ruled in direct contradiction of the international norm stated by Huber. "[The] petitioners' argument that 'jurisdiction and control' is equivalent to 'sovereignty' is wrong"158. Furthermore, it could be submitted that the court has followed the incorrect precedent in Johnson. In the 1946 case of Yamashita, a Japanese general made an application for habeas corpus whilst being held at U.S Base in the Philippines. The U.S intended to try Yamashita before a military tribunal, similar to that of Guantánamo Bay. It is interesting to note that the Court did not expressly say that the general was not entitled to any protection under the Constitution. It is submitted therefore that the court has implicitly established that an enemy alien held under the control of The United States in a foreign territory will be within the jurisdiction of the Constitution. The mistake made by the Court in the Clergy case is as follows; the Military Commission referred to in Johnson was based in China that was not under U.S control and therefore the Constitution cannot apply. In Yamashita159, the US-controlled base in the Philippines is incredibly similar to Guantánamo Bay. An American on trial in the United Kingdom could not take the Fifth Amendment - the 'effective control' criterion is key.
Having argued that the Constitution applies, it is submitted that both the Fifth and Sixth Amendments should be guaranteed to the detainees. The Fifth Amendment provides for a right to silence and that no one should "be deprived of life, liberty or property without due process of law". Justice Jackson in the case of Shaughnessy v. Mezei160 upheld the application of this principle. He stated, "No society is free where one person's liberty depends upon the arbitrary will of another...Our Bill of Rights was written to prevent such oppressive practices. Under it this Nation has fostered and protected individual freedom...our constitutional principles are - that no person of any faith... native or foreigner...can have his life, liberty or property taken without due process of law161". Clearly, a due process of law would require presumption of innocence, provision of legal advice and fair procedure before an independent court of law. In light of this ruling, it is clear how George Bush has wilfully disregarded the foundations of the American legal system in the name of national security.
iv) What Alternatives Are There?
Harold Hongju Koh162 has argued that the ordinary federal courts would provide a suitable setting in which to try the Guantánamo detainees. This view is convincing in light of the removal of John Walker Lindh and Yasser Hamdi from Guantánamo in order to stand trial in the U.S. This proposition is a welcome alternative to military commissions yet a pure criminal prosecution model may not be entirely satisfactory. Firstly, there is the issue of impartiality. With the intense media scrutiny and executive interest, one could argue that an entirely independent judiciary would be difficult to secure. One should not discount the possibility that some Muslim states will never accept the legitimacy of the American judicial system. Secondly, it is questionable whether jurors would want to place themselves in the judicial arena when there is a threat of retribution from the terrorist groups in question. The main problem is that jurors and witnesses have legitimate fears about becoming involved on such politically sensitive cases. It is submitted that an ad hoc international tribunal, established by a Security Council Resolution, would be the most preferable option163. Ruth Wedgwood has argued that such tribunals are too slow and costly164 - surely the objective of any court is the delivery of justice and that economic considerations should not take precedent over this key principle of law. Wedgwood supports the use of military tribunals in light of the potential security threats of staging a trial domestically165. In the light of the fact that there is no settled definition of terrorism, the attacks of 9/11 could be classified as a crime against humanity166. Al-Qaeda's attacks may have been sporadic but they were part of a clear campaign against American policy, it follows that this charge should be used, as there exists a clear consensus on its definition.
CHAPTER 4: CONCLUSIONS
i) The United States and International Law
The 9/11 attacks have had a profound impact on the global order and international law. The United States, as the only true superpower, has amplified this impact by appointing itself as the global police force. Its selective and unilateralist approach to international law may have set a dangerous precedent for the resolution of future conflicts by abandoning the previous policy of containment. In relation to Afghanistan, the attempt to establish a norm of pre-emptive self-defence poses serious problems for the maintenance of world peace. Yet historically this wide form of self-defence has been overwhelmingly rejected; Grotius wrote in the 17th Century that "the danger must be immediate and imminent in point of time...but those who accept fear of any sort as justifying anticipatory slaying are themselves greatly deceived and deceive others167". It is this fear that the White House have capitalised on in the aftermath of 9/11 to enact previously inconceivable foreign policies; Osama Bin Laden had been based in Afghanistan long before the attacks but the United States took no action. Furthermore, the Nuremberg Tribunal in dismissing Germany's claim of pre-emptive self-defence when they sought to justify their invasions of Poland and Norway expressly rejected the doctrine; it was held that this was simply an act of aggression168. Theoretically, if this expansive doctrine of pre-emptive self-defence was to become part of customary international law it could legitimise a North Korean attack on South Korea or a pre-emptive strike from India on Pakistan. As Richard Gardner argues, "the Bush Administration has created a loaded weapon that can be used against the United States and against the general interest in a stable world order169". The potentially infinite elasticity of this doctrine is unacceptable and it is clear that claim to self-defence must continue to be assessed by the Caroline principles of necessity, proportionality and imminence rather than emotive, knee-jerk reactions to solve short-term problems.
The assertions of legality for the Iraq conflict have been unconvincing; it is a hybrid theory of self-defence, collective self-defence, enforcement of U.N. Resolutions, humanitarian intervention and the threat of WMD. With this conflict, America stated that it is willing to completely disregard the views of the Security Council in order to defend its interests. The Bush doctrine on the use of the force proposes a return to the St Augustinian era of the 'just war' - that all force is permissible if it is used to eradicate evil. Intervention in the affairs of sovereign states is contrary to Article 2(4) of the UN Charter and it would be objectionable if international law evolves in this way. It was for this reason the Security Council passed Resolution 687 as censure for Iraq's violation of this Article when their army invaded Kuwait.
ii) Alterative Methods to Deal With Terrorism
International law is heading in the wrong direction if it is ever to combat terrorism effectively. The flaws in the international legal system highlighted by the September 11th attacks need correcting as neither mass terrorism or the acquisition and use of WMD are sufficiently covered by existing legal theories, but it is not for the United States to unilaterally amend international law. This new doctrine highlights a consistent approach by the United States to international law; international law will always apply to others but it will only bind the United States at its own free will. Such an approach is dangerous as one cannot always guarantee that states will always in act in a peaceful and democratic manner
a) Exhaustion of Diplomatic and Peaceful Remedies
Firstly, there should be a genuine effort that one exploits all other possible alternatives before one employs recourse to force. Indeed this is a clear obligation under Article 33 of the UN Charter; if a state fails to discharge its legal obligations to the rest of the global community, one could employ diplomatic, economic or political sanctions before taking military action. As it is apparent that Sadaam Hussein did not have any WMD, one can deduce that the previous policy of containment had in fact in worked through the threats of such sanctions. However, it appears America had ulterior motives for the use of force. For example, they were hostile to a Syrian proposition of allowing Sadaam Hussein to reside in exile within its borders. The United States and the United Kingdom were unwilling to allow UNMOVIC to carry out its work diligently yet after the conclusion of hostilities both governments are quick to stress the need for time in uncovering the evidence of Sadaam's WMD programmes. In both conflicts, it appeared that the United States were committed to the use of force.
b) Collective and Multilateral Action
Secondly, if evolutions in customary international law are to have any legitimacy then the majority of international actors must approve them; mere assertions by the United States and its allies will not suffice. Article 39 of the UN Charter clearly states that it is for the Security Council to determine threats to peace and security but not individual UN members. American unilateralism undermines the operation of the international legal system and severely damages the moral credibility of the Afghan and Iraqi operations. It is not necessary to completely discard faith in the operation of the Security Council, as it is not meant to function as a 'rubber-stamp' body for the use of force. Indeed the very reason for its creation was to avoid a repeat of the aggression of Hitler's Germany during the Second World War. By nature, this regulatory body does not act in the interests of governments but in the interests of citizens. If one produces compelling evidence of a threat to international peace and security, it is inconceivable that the Security Council would not take action against rogue states that pose such a threat. Indeed as the ICJ ruled in Nicaragua, the state claiming the right to self-defence allow any evidence to be scrutinised by the international community170. There is no need for a strict rule to determine the definition of this threat, as it is largely a question of fact hence the need for an ad hoc, fluid approach. It is also unreasonable and disproportionate to result to force without considerations of policy; the humanitarian and economic costs of war are too great to be determined by legal technicalities
c) The Charter Post-9/11
It is clear that a Restrictivist interpretation of the UN Charter is unsatisfactory as one is now threatened with a very different danger from that posed at its inception. Yet, the Expansivist theory is equally extreme; this proposes an overly liberal interpretation of the use of self-defence as per Article 51. Tony Blair has implicitly suggested that the UN Charter should be reformed to include the doctrine of humanitarian intervention171. Such a proposition is unlikely to be enacted, as reform of the Charter will be a difficult process whilst the current veto system is maintained. 9/11 showed the international community that the Charter is ill equipped to deal with the new threats of global terrorism.
d) Inter-State Co-operation
As Michael Howard172 has pointed out, by classifying the response to 9/11 as a 'war' evaporated any moral superiority that the United States gained from the attacks. Terrorism has plagued society throughout history until the present day; it is unfeasible that any such 'war' can ever be won, as it is indeterminable, ongoing battle. This is an unprecedented use of the term to define action against a terrorist threat; it will only exacerbate the fraught relationship between the West and the Arab world if it is perceived to be a war on 'Islam'. The inference appears to be that diplomacy will be sufficient in the West but not for Islamic terrorists. There are two possible ways to bring terrorists to justice. Firstly, there is sufficient scope through the increased inter-state co-operation and the use of the current network of extradition treaties to try terrorists in domestic courts. Although this is a difficult and lengthy procedure, it is legitimacy, reasonableness and fairness that are paramount in the administration of justice. Secondly, the use of military tribunals conveys the wrong message to the international community as it abandons the core democratic values upon which the United States was founded. Whilst it satisfies the political motivation for revenge, it sets a dangerous precedent for the treatment of foreign nationals abroad. For terrorist operations of the enormity of 9/11, one could potentially classify them within the remit of the International Criminal Court173. The problem of finding a universally acceptable legal definition for a politically motivated act of terrorism has lead to the failure of the numerous anti-terrorist conventions. Treaties such as the Montreal Convention 1971 depend largely on the parties acting in good faith to their obligations; such treaties' operation can be frustrated if one state party defines the accused as 'a freedom fighter' rather than a terrorist. An alternative line of prosecution therefore is to define terrorism as a 'crime against humanity'. Article 7(2a) of the Rome Statute defines this as an "attack directed against any civilian population" as part of a course of conduct against that population174. Alternatively, Article 6 defines the crime of genocide as an act with intent to destroy, in whole or in part, national, ethnical, racial or religious groups. Indeed, terrorist groups such Hamas have stated that they seek to eliminate the Jewish population from occupied territories of Palestine whilst Al-Qaeda openly advocates the killing of Americans. Whilst some may raise objection based on 'fair labelling' concerns, it is submitted that the existence of an international consensus of these terms avoids the problematic issue of defining 'terrorism'.
e) Closing Remarks
It is clear that Austin's view of international law reflects the reality of current American practice. Austin argued that the term international law is a contradiction in terms and that it is merely a body of positive morals that guide state behaviour. However, since Austin's time, states have consistently limited their sovereignty through a series of international agreements in pursuit of equality. The conduct of the Untied States has shown that in practice, such agreements are not final, but it is clear that such policy cannot continue in order to maintain the common interest of peace and stability. The Bush Administration succeeded in alienating most of its long-time allies in its brash contempt for diplomacy before the Iraq war. Even the United Kingdom has openly criticised the Bush government on the continued detention of the Guantánamo suspects. Whilst Austin's view clearly indicates the weaknesses of the international legal system, this system does not operate autonomously from diplomatic, political and social pressures. Despite their superpower status, if the United States is to retain any credibility then they must respect the norms of international law rather than undermine them. History proves that counter-terrorist measures succeed only in breeding more terrorism; it is the causes of terrorism that need to be addressed and not its symptoms. As Kofi Annan has written, "States should seek to strengthen international law and its legal system in order to prevent and suppress terrorism175".
(15,310 words including footnotes)
APPENDICES
a) List Of Treaties Used In Text
Geneva Conventions for the Protection of War Victims 1949
International Covenant on Civil and Political Rights 1966
Lease to The United States of Lands In Cuba for Coaling and Naval Stations, Feb 16-23, 1903
Protocol 1 Additional to the Geneva Conventions (Red Cross) regulating to the Protection of Victims of International Armed Conflicts 1977
The United Nations Charter 1945
Treaty between The United States and Cuba Defining Their Relations, May 29, 1934,
Vienna Convention on the Law of Treaties 1969
b) List Of Statutes Used In Text
Civil Liberties Act 1988 (50 U.S.C. App. 1989)
Iraq Liberation Act 1998 (112 Stat. 3178 (1998)
Rome Statute of the International Criminal Court 1998
c) List Of Cases Used In Text
International Cases
Advisory Opinion Of The Legality of the Threat or Use Of Nuclear Weapons ICJ Rep (1996)
Drescher Caldas v. Urugary, HRC 43/79
International Military Tribunal (Nuremberg) Judgement, 41 AJIL at page 205 (1947)
Iran V. U.S. (Tehran Hostages) ICJ Rep 3 (1980)
Lewis v. Jamaica HRC (708/86)
Minquiers and Ecrehos Case (ICJ Reports, 1953)
Namibia Advisory Opinion, (1971) ICJ Reports 15
Netherlands v. U.S. 2 RIAA 829 (1928)
Nicaragua Case (Merits) ICJ Reports (1986)
Polay Campos v. Peru HRC (577/94),
Portugal v. Germany 2 RIAA 1012 (1928)
Prosecutor v. Tadic , Case No IT-94-1-A (ICTY 1999)
The Caroline Case 29 BFSP 1137-1138 (1938)
The Lotus Case, PCIJ, Series A, No.10 (1927)
UK .v. Albania,4 ICJ Rep 1949
U.S. v. Mexico 4 RIAA 82 (1925)
Yeager v. Iran (1987) 17 Iran-USCTR 92
US Cases
Coalition of the Clergy v. George Walker Bush; Case No. CV 02-570 AHM (JTLX)
Ex Parte Quirin 317 U.S. 1 (1942)
Hamdi v. Rumsfeld, Aug. 16, 2002, (243 F.Supp.2d 527)
Johnson v. Eisentrager 339 U.S. 763 (1950)
Korematsu 323 U.S. 214 (1944)
Korematsu v. United States 584 F. Supp. 1406 (N.D. Cal. 1984)
Re Yamashita, 327 U.S. 1 (1946).
Shaughnessy v. Mezei 345 U.S. 206 (1953)
United States of America v.Omar Ahmad Ali Abdel Rahman et al. (1994 WL 23271)
United States v. John Philip Walker Lindh, July 11th 2002, (227 F.Supp.2d 565)
Yick Wo v. Hopkins 118 U.S. 356 (1886)
UK Cases
Liversidge v. Anderson [1941] 2 All ER 612
R v.Hosenball [1977] 3 All ER 452
The Arantzu Mendi [1939] 1 AC 256
Other Jurisdictions
Aleksander Danikovic et al v. Staat der Nederlanden (Ministeries van Defensie en Buitenlandse Zaken) ; RB Den Haag KG 1333, 01/0027, 29 March 2002 (Netherlands)
d) Abbreviations Used In The Text
AJIL - American Journal of International Law
EJIL - European Journal of International Law
GLJ - Georgetown Law Journal
HIJL - Harvard International Law Journal
Hou'JIL - Houston Journal of International Law
ICLQ - International and Comparative Law Quarterly
IYHR - Israeli Yearbook of Human Rights
LSG - The Law & Society Gazette
MJIL - Michigan Journal of International Law
NILR - Netherlands International Law Review
RDC - Recueil Des Cours
SLR - Stanford Law Review
UDMLR - University of Detroit Mercy Law Review
WIJL - Wisconsin International Law Journal
YJIL - Yale Journal of International Law
List Of Websites
www.amnesty.org
www.abcnews.com
www.bbc.co.uk/news
www.channel4.com/news
www.crimesofwar.org
www.findlaw.com
www.globalpolicy.org
www.icj-cij.org
www.interights.org
www.iraqresearch.com
www.law.duke.edu
www.lexusnexus.com
www.marshallcenter.org
www.peacerights.org
www.ssrc.com
www.un.org
www.unimovic.org
www.westlaw.com
www.whitehouse.gov
BIBLIOGRAPHY
- 'Appraisals of the ICJ's Decision: "Nicaragua v. United States (Merits""' 81 AJIL 77 (1987)
- "A Memorandum to the US Government on the rights of people in US Custody in Afghanistan and Guantánamo Bay" - Amnesty International, April 2002, available at www.amnesty.com
- "A Memorandum To The US Government: "Amnesty International's Concerns Regarding Post-September 11th Detentions in the USA" - available at www.amnesty.org
- 9/11 - One Year On: Crimes Of War Project Feature Magazine, available at www.crimesofwar.org
- Abramovici, Pierre, The US and the Taliban: A Done Deal, Le Monde Diplomatique, January, 2002
- Ackerman, David M., CRS Report for Congress RS 21314 - "International Law and the Pre-emptive Use Of Force Against Iraq"(2003) -, Legislative Attorney of the America Law Division available at http://www.iraqresearch.com
- Austin, John, The Austinian Theory of Law (WJ Brown 1926)
- Bigo, Didier, "To Reassure, And Protect, After September 11" -, Social Science Research Council (2002)
- Blix, Hans, Is There A Need For A Definition of Aggression, The Dag Hammarskfold Lectures, (Alquivst & Wiksell 1970)
- Bothe, Michael, "Terrorism and the Legality of Pre-emptive Force", Vol 14 No 2 EJIL 227 (2003)
- Bradley, Curtis A & Goldsmith, Jack, "The Constitutional Validity of Military Commissions", 5 Green Bag 2d (Spring 2002)
- Brownlie, Ian, Principles of Public International Law, Oxford (5th Edition, 1998) at page xlvii
- Brownlie, Ian, Submission to the ICJ, representing Yugoslavia challenging the legality of the NATO bombing campaign (1999) - available on the ICJ website: http://www.icj-cij.org
- Byers, Michael "The Shifting Foundations Of International Law: A Decade Of Forceful Measures Against Iraq"- available on the Duke University website: http://www.law.duke.edu
- Byers, Michael, "Terrorism, The Use Of Force And International Law After 11th September" - 401 Vol 51 ICLQ April 2002
- Cassesse, Antonio, "Ex injuria ius oritur: Are We Moving Towards International Legitimation Of Forcible Humanitarian Countermeasures In The World Community?" 10 European Journal of International Law 23 (1999)
- Chander, Apunam, "Guantánamo And The Rule Of Law", (2003) available at www.findlaw.com
- Charney, Jonathan , "Terrorism and The Right Of Self-Defence", 95 AJIL [2001] 853-839
- Chibeuze, Remigius, "United States Objection to The International Criminal Court: A Paradox of Operation Enduring Freedom", 9 Annual Survey of International & Comparative Law 19
- Chomsky, Noam, "Terror And Just Response", (2002) available at www.globalpolicy.org
- Clarke-Posteraro, Christopher, "Intervention in Iraq: Towards A Doctrine Of Anticipatory Counter-Terrorism, Counter-Proliferation Intervention" 15 Florida Journal Of International Law 151 (Fall 2002)
- Cole, David "Enemy Aliens", Stanford Law Review, Vol. 54, 953-1005 (May 2002)
- Cole, David- "The New McCarthyism - Repeating History In The War On Terrorism" - Harvard CRCL Law Review Vol 38 No 1 , Winter 2003
- Committee on International Security Affairs of the Association of the Bar of the City of New York, "The legality and constitutionality of the
President's authority to initiate an invasion of Iraq," 41 Columbia Journal of Transnational Law 15-32 (2002).
- Condorelli, Luigi, "The Imputability to States of Acts of International Terrorism", 19 Israeli Yearbook of Human Rights 230 (1990)
- D'Amato, Anthony - "Trashing Customary International Law" 81 AJIL 101 (1987)
- Denis, Catherine , "La Résolution 678(1990) - Peut-elle Legitmer Les Actions Armées Menées Contre Irak Postièrement de la Résolution 687(1991"), Revue Belge de Droit International (1998)
- Dinstein, Yoram, War, Aggression and Self-Defence, (3rd Edition) Cambridge, (2001)
- Dorf, Michael C., "What Is An Unlawful Combatant And Why It Matters", www.findlaw.com (last visited 20th September 2003)
- Duffy, Helen "Responding To September11th: The Framework of International Law" - available at http://www.interights.org
- Falk, Richard, "Appraising The War In Afghanistan", Social Science Research Council (2002)
- Falk, Richard, "What Future For The UN Charter System of War Prevention", 97 AJIL 590 (2003)
- Franck, Thomas, "What Happens Now? The UN After Iraq", 97 AJIL 607 (2003)
- Franck, Thomas, "Who Killed Article 2(4)?", 64 AJIL 809 (1970)
- Freedman, Eric.M, "The Bush Military Tribunals: Where Have We Been? Where Are We Going?", 17 Criminal Justice 14, Summer 2002 (American Bar Association)
- Gardner, Richard N., "Neither Bush Nor The 'Jurisprudes", 97 AJIL 585 (2003)
- Gray, Christine, "From Unity to Polarization: International Law and the Use of Force against Iraq", EJIL (2002) Vol. 13, No.1, 1-19
- Greenwood QC, Christopher, "International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq", 4 San Diego International Law Journal 7 (2003)
- Harris, D.J, Cases and Materials On International Law (5th Edition) Sweet & Maxwell (1998)
- Head, John, "The United States and International Law After September 11th", 11 Kansas Journal of Law & Public Policy 1 (2001)
- Howard, Michael, "What's In A Name?: How to Fight Terrorism", Foreign Affairs, Jan-Feb 2002, v81 i1 pg 8
- Janik Jr, Anton L., "Prosecuting Al Qaeda: America's Human Rights Policy Interests Are Best Served By Trying Terrorists Under International Tribunals", Denver Journal of International Law and Policy (Summer/Fall 2002)
- Jinks, Derek, "September 11th and the Laws of War", 28 Yale J. Int'l Law 1, Winter 2003
- Jinks, Derek, "State Responsibility for Sponsorship Of Terrorist and Insurgent Groups: State Responsibility for the Acts Of Private Armed Groups", 4 Chicago Journal Of International Law 83, Spring 2003
- Kearley, Timothy, "Raising The Caroline", 17 Wisconsin International Law Journal 325, (Summer, 1999)
- King, Matthew Scott, "The Legality of The United States War On Terror", 9 ILSA Journal Of International and Comparative Law 457
- Klabbers, Jan, "Rebels with a Cause? Terrorists and Humanitarian Law", European Journal of International Law (2003), Vol. 14, No. 2, 299-312
- Koh, Harold Hongju, "The Case Against Military Commissions", 96 A.J.I.L. 337 (2002)
- Kritsiotis, Dino "NATO's Armed Force Against Yugoslavia", Vol 49 ICLQ [2000] pgs 330-360, passim
- Kritsiotis, Dino "The Legality of The 1993 US Missile Strike on Iraq and The Right Of Self-Defence In International Law", 45 Vol 1 ICLQ 162 (1996)
- Malzahn, Scott M., "State Responsibility and Support of International Terrorism: Customary Norms of State Responsibility", 26 Hastings International & Comparative Law Review 83
- Mariner, Joanne, "Infinite Detention Of Terrorist Suspects", (2003) available at www.findlaw.com
- Maxon, Richard, "Nature's Eldest Law: A Survey of a Nation's Right To Act in Self-Defense", "Parameters" - US Army War College Quarterly Autumn 1995,
- McCarroll, Katherine M., "With Liberty and Justice for All", 80 U. Det. Mercy Law Review 231, Winter 2003
- McLain, Patrick, "Settling The Score With Sadaam: Resolution 1441 And Parallel Justifications For The Use Of Force Against Iraq", 13 Duke Journal of Comparative & International Law 233 (2003)
- Meacher MP, Michael "This War On Terrorism Is Bogus" The Guardian, September 6th 2003
- Megret, Frederic, "Justice in Times of Violence", European Journal of International Law (2003), Vol. 14 No.2, 327-345
- Megret, Frederic, "War? Legal Semantics And The Move To Violence", European Journal of International Law (2002) Vol. 13, No 2, 261-399 (
- Mofidi, Manhooner & Eckert, Amy E., "Unlawful Combatants or Prisoners of War: The Law and Politics of Labels", 36 Cornell International Law Journal 59
- Mundis, Daryl, "Prosecuting International Terrorists", 96 AJIL 85 (2002)
- Murphy, Sean D,"Assessing The Legality Of Invading Iraq" 92 Georgetown Law Journal No.4 (2004)
- Murswiek, Dieter, "The American Strategy of Pre-emptive War and International Law" (translated by Michael Mehling), 56 Neue Juristishche Wochenschrift 1014 (2003)
- Myjer, Eric P.J and White, Nigel D., "The Twin Towers Attack: An Unlimited Right To Self-Defence?", Journal of Conflict & Security Law 2002 7(5)
- O'Connell, Mary Ellen, "American Exceptionalism and The International Law of Self-Defense", 31 Denver Journal of International Law & Policy 42 (2002)
- O'Connell, Mary Ellen, "The Myth Of Pre-Emptive Self Defence" ASIL Task Force Papers (2002)
- Occelli, Maria Benvenuta, "Sinking The Caroline: Why The Caroline Doctrine's Restrictions on Self-Defense Should Not Be Regarded as Customary International Law" 4 San Diego International Law Journal 467 (2003)
- Paust, Jordan J, "Anti-Terrorism Military Commissions: The Ad Hoc Department of Defense Rules Of Procedure", Michigan Journal Of International Law 677 (Spring 2002)
- Paust, Jordan J, "Judicial Power To Determine the Status and Rights of Persons Detained Without Trial", 44 Harvard International Law Journal, Vol 503, Summer 2003
- Paust, Jordan J, "Terrorism: The Legal Implications of The Response To Armed Force against Terrorists in Afghanistan, Iraq and Beyond", 35 Cornell Journal of International Law 533, Winter 2002
- Ramirez, Jorge Alberto, "Anticipatory Self-Defense or Unlawful Unilateralism?", 34 California Western International Law Journal 1 (2003)
- Rehnquist, William H., "Lecture at Notre Dame Law School: 13th September 2002", 78 Notre Dame Law Review 1. December 2002
- Reisman, Michael, "In Defense of World Public Order", 95 AJIL 833 (2001)
- Roberts, Adam & Guelff, Richard, Documents On The Laws Of War, (Oxford, 3rd Edition, 2001)
- Roberts, Adam, Law And The Use Of Force Against Iraq, SURVIVAL, Vol 45, No 2, Summer 2003
- Rodriguez, Alejandra, "Is The War On Terrorism Compromising Civil Liberties? A Discussion of Hamdi And Padilla, 39 California Western Law Review 379 (2003)
- Rosenne, Shabtai, Recueil Des Cours, No 291, (2001), Martinus Nijhoff
- Sapiro, Miriam, "The Shifting Sands of Pre-emptive Defense", 97 AJIL 599 (2003)
- Schachter, Oscar, "Self-Defence And The Rule Of Law" 83 AJIL 259 (1989)
- Schacter, Oscar, "UN Law in The Gulf Conflict", 85 AJIL 506 (1991)
- Schmitt, Michael N., "Counter-Terrorism And The Use Of Force In International Law", The Marshall Center Papers No.5, November 2002 - available at http://www.marshallcenter.org
- Schmitt, Michael N., "Trial, Detention, Or Release?" (2002) available at www.crimesofwar.org
- Schrijver, Nico J., "Responding to International Terrorism: Moving the Frontiers of International Law for 'Enduring Freedom", 48 NILR 271 (2001)
- Seidman, LM - Our Unsettled Constitution Yale Uni Press (2001)
- Shaw, Malcolm, International Law (1997) (4th Edition) Cambridge, pgs 777-798
- Simma, Bruno "NATO, the UN and the Use Of Force: Legal Aspects," 10 EJIL 1 (1999)
- Singh QC, Rabinder, "The Legality Of The Use Of Force Against Iraq" (2002) available at www.peacerights.org
- Slaughter, Anne-Marie, "The Future of International Law: Ending the US-Europe Divide", Crimes of War Project (2002), available at www.crimesofwar.org
- Sofaer, Abraham, "On the Necessity Of Pre-Emption", EJIL (2003) Vol.14 No.2, 209-226
- Spiro, Peter, "The Post 9/11 Legal Landscape" available at www.findlaw.com
- Stahn, Carsten, "International Law Under Fire: Terrorist Acts as "Armed Attack: The Right to Self-Defense, Article 51 (1/2) of the UN Charter and International Terrorism", 27 Fletcher Forum of Word Affiars 35 (Summer/Fall 2003)
- Stromseth, Jane, "Law & Force After Iraq", 97 AJIL 628
- Sullivan, David, "The Bombing Of Afghanistan", New Law Journal 1778 (2001)
- Talbot, Rhiannon, "The Balancing Act: Counter-Terrorism And Civil Liberties In British Anti Terrorism Law", Law After Ground Zero, John Strawson (ed.) 1st Edition (2002), Glasshouse Press
- Touler, Andrew, "The War Counsel", 98 The Law & Society Gazette 2001
- Trahan, Jennifer, "Trying a Bin Laden and Others: Evaluating The Options For Terrorist Trials", 24 Houston Journal of International Law 475
- Tribe, Lawrence - American Constitutional Law - 2nd edition -- Foundation Press (1988)
- Turley, Jonathan, "Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian Democracy", 70 George Washington Law Review 649 (August 2002)
- Vagts, Detlev F, "Which Courts Should Try Persons Accused of Terrorism?", Vol 14 No 2 EJIL 313(2003)
- Van Den Hole, Leo, "Anticipatory Self-Defense Under International Law", 19 American University International Law Review 69 (2003)
- Vladeck, Stephen I., "The Detention Power", 22 Yale Law & Policy Review 153 (2004)
- Wedgwood, Ruth, "Al Qaeda, Terrorism and Military Commissions", 96 A.J.I.L 328 (2002)
- Wu, Frank H., "Profiling in The Wake Of September 11: The Precedent of The Japanese American Internment", 17 Criminal Justice 52, Summer 2002 (American Bar Association)
The Austinian Theory of Law at page 156, (WJ Brown 1926)
2 Opinio Juris is a psychological belief by a state that their actions are lawful - The Lotus Case, PCIJ, Series A, No.10 (1927)
3 F. Megret, War? Legal Semantics And The Move To Violence, EJIL, Vol 13, No 2, 261-399 (2002)
4 Richard Morin and Claudia Deane, Americans Willing to Go to War, September 12th 2001, Washington Post reporting that 80% of Americans favoured instant military action
5 L.Oppenheim, International Law as quoted in Yoram Dinstein; War, Aggression And Self Defence, at page 4 (Cambridge, 3rd Edition, 2001)
6 Al Qaeda is headed by the Saudi exile, Osama Bin Laden
7 Nicaragua v. United States, ICJ Reports, (1986)
8 The Reagan government were concerned at the rise of a new communist government in Nicaragua
9 Ibid, para 228
0 See the condemnation of the Israeli missile strike on Iraq in 1981
1 112 Stat. 3178 (1998)
2 National Security Strategy of the United States of America, 2000 at www.whitehouse.gov /nsc/nss.pdf (Retrieved on 2nd October 2003)
3 SC Res 1368 (2001), September 12th
4 This is not a reference to a system of precedent, as in the common law system, yet it must be acknowledged that previous decisions by the Security Council will add weight to political and diplomatic arguments
5 Portugal v. Germany 2 RIAA 1012 (1928)
6 See U.N. S.C. Res. 188 (9 Apr. 1964), U.N. Doc. S/5650 - "The Security Council...condemns reprisals as incompatible with the purposes and principles of the United Nations."
7 Michael Byers, Terrorism, The Use Of Force And International Law After 11th September -Vol 51 ICLQ April 2002 at page 403
8 For example, Russia could legitimise heavy-handed military force against Chechen rebels
9 SC Res 1267 (1999)
20 UN SC Res 84 (1950)
21 "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in an other manner inconsistent with the Purposes of the United Nations".
22 Thomas Franck, Who Killed article 2(4)? 64 AJIL at page 810 (1970)
23 See Article 42 of The UN Charter
24 See John Negroponte, Letter dated October 7th 2001 from the Permanent Representative of the United States of America to United Nations addressed to the President of the Security Council, S/2001/946, 7th October
25 See statement by Jack Straw, HC Hansard, vol 372, col 690, 4th Oct 2001
26 "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security...".
27 Hague Lectures 81 RDC 455, 498 (1952)
28 Franck, supra note 22, pg 812
29 NATO Press Release No.124, September 12th 2001 - available at www.nato.int/docu/pr2001 (Retrieved 8th February 2003)
30 Antonio Cassesse, Ex injuria ius oritur: Are We Moving Towards International Legitimation Of Forcible Humanitarian Countermeasures In The World Community? 10 EJIL 23 (1999)
31 Head of International Law at Clifford Chance, London -Carver's view will be biased as he was counsel to the UK government on Afghanistan
32 as quoted in The War Counsel by Andrew Touler, page 98, The Law & Society Gazette 2001
33 Foreign Secretary Morrison, Hansard HC, Vol 485, cols 2410-2411, March 21 1951 as quoted in Harris, Cases & Materials in International Law, 5th Edition (1997)
34 [1939] AC 256
35 Ibid at pages 264-265 - Lord Atkin' opinion does not bind the Bush administration, but it can be viewed as a persuasive interpretation of customary international law
36 Gregory M. Travalio, Terrorism, International Law, and the Use of Force, 18 WIJL at page 152 (2000) - arguing that an omission should not be considered as the equivalent of an armed attack within the meaning of the UN Charter
37 John Simpson, News From No Man's Land, Macmillan (2002)
38 29 BFSP 1137-1138
39 Abraham Sofaer, On the Necessity Of Pre-Emption, EJIL (2003) Vol.14 No.2, 209-226
40 Ibid, page 225
41 see the Nicaragua case, supra note 7and the Advisory Opinion Of The Legality of the Threat or Use Of Nuclear Weapons at page 499 ICJ Rep (1996)
42 Nico J Schrijver, "The law of self-defence (does not provide) for a licence for victims states to target at their whim other states", See Responding to International Terrorism: Moving the Frontiers of International Law for 'Enduring Freedom", 48 NILR 271 (2001)
43 Yoram Dinstein, War, Aggression and Self-Defence, page 184, (Cambridge, 3rd Edition, 2001)
44 Colin L. Powell, U.S. Secretary of State, "The al-Qaeda network is located in dozens of countries all around the world and we are targeting all of the cells of al-Qaeda". NBC Nov 11, 2001
45 Douglas Frantz and Desmond Butler, Germans Lay Out Early Al-Qaeda Ties to 9/11 Hijackers, New York Times, August 24, 2002
46 Richard Falk; Appraising The War Against Afghanistan, Social Science Research Council, 2002
47 Patrick Butler, Pakistan halts secret plan for bin Laden trial Fugitive, The Daily Telegraph, October 04 2001
48 Supra, note 32
49 as quoted in The War Counsel by Andrew Touler, page 98, LSG 2001
50 UN Doc A/56/10 (2001): Article 8 states that the conduct of person will only be considered an act of a state if;
(1)it is established that such a person was in fact acting on behalf of that state; or
(2)such a person or group was in fact exercising elements of the governments authority in he absence of the official authorities and in circumstances which justified the exercise of those elements of authority
Article 11 provides that "conduct which is not attributable to a State under the preceding articles shall nevertheless be considered at act of a State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own".
51 Yeager v. Iran (1987) 17 Iran-USCTR 92, Iran V. U.S. (Tehran Hostages) ICJ Rep 3 (1980)
52 Luigi Condorelli, The Imputability to States of Acts of International Terrorism, 19 IYHR at page 239 (1990)
53 Iran V. U.S. (Tehran Hostages) ICJ Rep 3 (1980) at page 71, the Iranian government's express approval of the hostage taking at the US Embassy transformed the acts of the militia into an act of the state.
54 Case No IT-94-1-A (ICTY 1999)
55 Derek Jinks, State Responsibility for Sponsorship Of Terrorist and Insurgent Groups: State Responsibility for the Acts Of Private Armed Groups, 4 Chicago Journal Of International Law Spring 2003 at page 89
56 Paragraphs 1-3
57 When liability has been established under the doctrine of state responsibility, the penalty is normally financial.
58 (U.S. v. Mexico) 4 RIAA 82 (1925)
59 Ibid at paragraph 20
60 There is a strong Republican movement amongst Irish Americans in Boston providing funding for the IRA, see Business Week Bush's Foreign Policy: Righteous or Reckless?, 28th October 2002
61 Supra, note 53 at page 68
62 Former Professor of Political Science, Yale University
63 Barnett Rubin, The Fragmentation of Afghanistan, Foreign Affairs, Winter 1989/1990, Vol 68 (5) at page 151
64 Dore Gold, Terrorism Adviser to Ariel Sharon, Interview with Five News, 4th Nov 2003
65 Joint Inquiry Into Intelligence Community Activities Before And After The Terrorist Attacks Of September 11th: US Senate Select Committee on Intelligence and US House Permanent Select Committee On Intelligence, December 2002
66 ABC News; Questioning Saudi Arabia: Investigations Into Whether Saudi Money Continues To Flow To Al-Qaeda, 25th November 2003 at www.abcnews.com, visited 8th February 2004
67 This is a sub-division of the US Department of Energy, created by Congress in 1977.
68 Hereafter referred to as WMD
69 For an analysis of the legal principles governing the law of self-defence, please see Chapter 1.
70 George Bush, Graduation Speech at West Point Military Academy, 1st June 2002 available at www.whitehouse.gov/news/releaases/2002/06/20020601-3.html
71 Supra note 39 , at page 172
72 Estimates suggest Sadaam Hussein killed as many 350,000 Kurdish people between 1978 and 2003, Sadaam's Atrocities, Fox News, Sunday, December 07, 2003
73 Condozeela Rice, National Security Adviser, BBC News 24, 15th August 2002
74 This route was taken with regard to East Timor in S.C. Res. 1246, U.N. Doc. S/RES/1246 (1999)
75 Sir Adam Roberts, Law And The Use Of Force Against Iraq, SURVIVAL, Vol 45, No 2, Summer 2003
76 ICJ Reports (1986) at para 268
77 UK Foreign Policy Document No 148 (1986).
78 SC Res 1160, SC Res 119 9 and SC Res 1203.
79 UK .v. Albania,4 ICJ Rep 1949
80 Ibid at Para 34
81 "A peremptory norm of general international law" - Ian Brownlie, Principles of Public International Law, Oxford (5th Edition, 1998) at page xlvii
82 As quoted in Simma: Nato, The UN and the Use of Force: Legal Aspects 10 EJIL (1999) at page 7
83 The Russian government undertook an ethnic cleansing policy against Chechen rebels who sought independence.
84 Many western democracies view the death penalty as a gross violation of human rights. See www.amnesty.org
85 16th April 2003, 61% of Americans 'strongly supported' the war in Iraq (Washington Post/ ABC News)
86 SC Res. 798 (1990)
87 James A. Baker III, The Politics Of Diplomacy as quoted in Sean D Murphy, The Legality Of Invading Iraq, 92 GLJ No.4 (2004)
88 Catherine Denis, La Résolution 678(1990) - Peut-elle Legitmer Les Actions Armées Menées Contre Irak Postièrement de la Résolution 687(1991), Revue Belge de Droit International (1998)
89 Oscar Schacter, UN Law in The Gulf Conflict, 85 AJIL 506 (1991)
90 UN SC Res 687 (April 8 1991)
91 March 3 1991, Letter to the President of The Security Council from the Iraqi Permanent Representative UN Doc S/22320
92See Sean D Murphy, The Legality Of Invading Iraq, 92 GLJ No.4 (2004)
93 Ibid
94 SC Res 1441 (Nov 8 2002)
95 Ibid, Para 1
96 Ibid, Para 2
97 The United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) was created through the adoption of Security Council Resolution 1284 of 17 December 1999 in order to disarm Iraq of any weapons found and ensure compliance with previous UN resolutions
98 Supra note 94, Paras 3 and 6
99 Ibid, Para 13 and 14
00 Arts 24, 26, 31 and 32, Vienna Convention on the Law of Treaties 1969
01 Namibia Advisory Opinion, (1971) ICJ Reports 15 at para 53
02 UN Doc. S/PV 4664 at 5
03 Ibid at para 8
04 Ibid at para 7
05 Ibid at para 3-4
06 Ibid at para 3
07 Dr Hans Blix, Executive Chairman of UNMOVIC, Briefing to the UN Security Council, 27th January 2003, http://www.un.org/Depts/unmovic/new/pages/security_council_briefings.asp#5
08 Kofi Annan, UN Secretary General, The Hague, The Times, 11th March 2003
09 Emphasises that decisions regarding international peace and security must be 'collective'
10 Project for a New American Century: Rebuilding America's Defenses (2000)
11 as quoted by Michael Meacher MP, This War On Terrorism is Bogus, The Guardian, Saturday 6th September 2003
12 Professor of Political Science, University Of Pennsylvania
13 as quoted in the Philadelphia Daily News by William Bunch; 4 Years Before 9/11, The Plan Was Set, January 27th 2003
14 Thomas Paine, Dissertation on First Principles of Government, The Complete Writings OF Thomas Paine Vol 2 pg 588 as quoted in Jordan J Paust, Judicial Power To Determine the Status and Rights of Persons Detained Without Trial, 44 HIJL Vol 503, Summer 2003
15 Aleksander Danikovic et al v. Staat der Nederlanden (Ministeries van Defensie en Buitenlandse Zaken) ; RB Den Haag KG 1333, 01/0027, 29 March 2002
16 United States of America v.Omar Ahmad Ali Abdel Rahman et al. (1994 WL 23271)
17 [1941] 2 All ER 612
18 [1977] 3 All ER 452
19 David Rivkin, Legal Adviser to Bush Government, Channel 4 News, 25th November 2003, www.channel4.com/news
20 Speaking in the 27th F.A. Mann Lecture, 25th November 2003, London
21 Civil Liberties Act 1988 (50 U.S.C. App. 1989)
22 Korematsu 323 U.S. 214 (1944)
23 Korematsu v. United States 584 F. Supp. 1406 (N.D. Cal. 1984)
24 317 U.S. 1 (1942)
25 David Cole, "Enemy Aliens", SLR, Vol. 54, 953-1005 (May 2002)
26 Coalition of the Clergy v. George Walker Bush, page 14, line 13
27 Derek Jinks, September 11th and the Laws of War, 28 YJIL at page 9, (2003)
28 BBC News 24, Bosnia's Arab Handover Questioned, 22nd January 2002. The Head of the UN Human Rights Agency in Bosnia, Madeline Rees, described the handover as "an extra judicial removal from sovereign territory". www.bbc.co.uk/news
29 Harold Hongju Koh; The Case Against Military Commissions 96 AJIL at page 340
30 Supra, note 120
31 Decision of 12th March 2002
32 On November 10th2003, The Supreme Court in US agreed to determine status of detainees and their ruling is expected in the summer of 2004.
33 See the photo published in Foreign Affairs: Vol. 81 (2002) no 3, May/June
34 Hereafter referred to as the ICCPR
35 Article 4(1) requires that a derogation may be entered into when there is 'a public emergency which threatens the life of the nation'. The derogation must be 'officially proclaimed'; see the Concluding Comments on Azerbaijan (1994) UN Doc CCPR/C/79/ Add.38 at paragraph 7. In any case, a valid Article 4 derogation does not extinguish other international legal obligations
36 The body established to oversee the implementation of the rights granted by the ICCPR
37 The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, Nov 5th 2003, UN Doc CCPR/C/74/CRP.4/Rev 4 at paragraph 9
38 Human Rights Committee General Comment 8, 30th June 1982
39 (43/79) at paragraph 13(2)
40 (708/86) at paragraph 3(4)
41 It could be argued that this is the real reason for the release of five of the British detainees before the pending Supreme Court decision on their status in the summer of 2004.
42 Concluding Comments on Peru (1996) Un Doc. CCPR/C/79/Add.67
43 Polay Campos v. Peru (577/94),
44 International Covenant for the Yugoslavia Tribunal at Article 21.3
45 Department of Defense Military Commission Order No 1 (March 21st 2002) S 2(6)
46 Jordan J Paust, Anti-Terrorism Military Commissions - The Ad Hoc Department Of Defense Rules Of Procedure, MJIL at 682 (Spring 2002) citing a number of articles from the New York Times.
47 Military Order of Nov 13th 2001: Detention, Treatment, and Trial of Certain Non Citizens in the War on Terrorism, s. 7(a) Nothing in this order shall be construed to... (2) limit the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons
48 See the cases of United States v. John Philip Walker Lindh, July 11th 2002, (227 F.Supp.2d 565) and Hamdi v. Rumsfeld, Aug. 16, 2002, (243 F.Supp.2d 527)
49 118 U.S. 356 (1886)
50 Netherlands v. U.S. 2 RIAA 829 (1928)
51 The Netherlands had occupied the Island of Palmas since 1700
52 Reaffirmed in the Minquiers and Ecrehos Case (ICJ Reports, 1953)
53 Lease To The United States Of Lands In Cuba for Coaling and Naval Stations, Feb 16-23, 1903
54 Treaty Between The United States and Cuba Defining Their Relations, May 29, 1934, art III
55 Supra, note 136
56 Case No. CV 02-570 AHM (JTLX)
57 A World War II case when 21 German nationals petitioned for habeas corpus after being arrested by the United States Army in Japan. A Military Commission sat in China with the consent of Beijing. 339 U.S. 763 (1950)
58 Coalition of the Clergy v. George Walker Bush; pg 22, lines 6-7
59 327 U.S. 1 (1946).
60 345 U.S. 206 (1953)
61 As quoted in Katherine M. McCarroll, With Liberty and Justice for All, 80 UDMLR at 245 , (2003)
62 We Have The Right Courts To Try Bin Laden, New York Times, A10, November 23rd 2001
63 Jennifer Trahan, Trying a Bin Laden and Others: Evaluating The Options For Terrorist Trials, 24 Hou'JIL at 498 (2002)
64 Ruth Wedgwood, Al Qaeda, Terrorism and Military Commissions, 96 AJIL at 332 (2002)
65 Ibid at page 330
66 The International Criminal Court was established to deal with such crimes but the Rome Statute was only ratified on the 1st July 2002 and does not have retrospective jurisdiction.
67 Hugo Grotius, De Jure Belli Ac Pacis Libri (1625)
68 International Military Tribunal (Nuremberg) Judgement, 41 AJIL at page 205 (1947)
69 Richard N.Gardner, Neither Bush Nor The 'Jurisprudes', 97 AJIL at page 588 ( 2003)
70 Supra, note 7, paras 232-234.
71 Speech in Sedgefield, County Durham, Friday 5 March 2004
72 Michael Howard, What's In A Name?: How to Fight Terrorism, Foreign Affairs, Jan-Feb 2002, v81 i1 pg 8
73 The ICC statute came into effect on the 1st July 2002 after the required number for ratification was met.
74 Article 7(1) ICC Rome Statute
75 UN Secretary General's Foreword to the United Nations Yearbook 2001
Deconstructing The Post 9/11 Legal Hysteria - The US Response To Terrorism
Student No: 010955637
26
