Responding to Violence: American Options and International Law

By Curtis Francis Doebbler

Just before 9 a.m. on Tuesday, 11 September 2001, while hundreds of thousands of civilians were filing into work or being aroused by those on their way to work, an American Airlines jet slammed into one tower of the one hundred and ten-story World Trade Center in New York City. Minutes later another airliner slammed into the twin tower of the World Trade Center. And at about the same time a jet crashed into the Pentagon in Washington, D.C. These acts of violence against the United States left thousands dead and were apparently perpetrated by non-states actors.

After clearing the debris and attending to the wounded and traumatized, the United States government is faced with deciding how to respond to these atrocious attacks against its territory and against people under its jurisdiction.

This contribution examines the relationship between emotion and politics and international law in the context of the United States’ contemplated response. This done by first reviewing the emotions and political questions involved that will undoubtedly influence America’s response. By examining the constraints of international law. And finally, by examining the relationship between emotions and politics and international law in the process of decision-making concerning a response to the attacks.

Emotion and Politics

Americans and many others around the world reacted in shock, anger and indignation at the attacks on the World Trade Center and the Pentagon. How could such an attack happen? How could anyone hate the United States so much? How could anyone conceive, much less perpetrate, such a hideous atrocity? These are the questions that many Americans were left asking themselves in the wake of the 11 September destruction of New York City’s Twin Towers and the attack on the Pentagon.

At a political level, the United States government was caught completely off-guard. As a consequence it has been left in a situation where it must again establish the trust of the American people that it can indeed provide Americans a minimum degree of security. To do this it must try to bring the accomplices of the hijackers to justice as well as take action to prevent such attacks in the future.

Because of the high level of emotion that has been created by the scale of the attacks it is understandable that the United States government’s initial response to the attacks is guided in part by emotion. Just as interpersonal relations are often first guided by our emotions towards other individuals. However, allowing one’s response to critical situations to surrender to one’s emotions often leads to reactions that exacerbate an already tragic situation.

This is particularly true when others’ emotions are at stake, and particularly in a situation such as the current challenge that is confronting the nation. This is the case because the current consideration of a response appears aimed at a foreign country. Whichever country this may be, there will undoubtedly be innocent people in that country who have no culpability for the hideous acts that were committed in the United States, even if some of their fellow citizens or their government do have such culpability. The emotions of these people will be effected by any attack that United States carries out. If they see innocent fellow citizens, friends and family die, they will be filled with the same urge for revenge as are currently Americans. The result could be a spiral of violence, because as the recent attacks and so many before them have proven, it is almost impossible for a state to protect it citizens from attacks by individuals who are willing to sacrifice their lives to carry out an attack. To start such a spiral of violence will certainly not serve the cause of preventing future attacks.

Furthermore, despite the general global revulsion at the attacks and the heartfelt sympathy of many people around the globe for the civilians that were targeted, there are also other emotions at play abroad. While Americans see the attacks as directed against their comfortable and free way of life, many around the globe, including some in America, see the American way of life as threat to their own survival. While Americans get richer, many others are getting poorer or remaining as poor as they have been for generations. While Americans spend more on health care every year—despite denying many Americans access to this care—countries like Cuba and Iraq are prevented from enhancing even some of their most basic health care facilities because of the continuation of sanctions that only the United States still support. While Americans may use cheap foreign products, few Americans give much thought to the underpaid, and sometimes child, labor that is often associated with the production of these products. Indeed, as the country with control over more than three quarters of the world’s capital it is not surprising that some people in the world feel so hopelessly frustrated with their attempt to attain human development and the sharing of the world’s wealth that they strike out at Americans who have so much of the world’s resources for themselves. Such emotions are only exaggerated by American isolationism on environmental issues, development cooperation, and arms proliferation issues.

An attack against an already impoverished people will only serve to heighten the emotions of those who do not appreciate the American way of life or who blame it for their dire situations. This in turn will create an even larger population of people who may feel that the commission of atrocities against the American people are the only means they have of communicating their concerns to the United States.

These emotions need to be considered with the same sincerity that Americans’ own emotions of rage and fear are considered in deciding how to react to the attacks. Understanding these different emotions will also lead to a better understanding of the political context in which the attacks took place.

Politically, although many states may bow to the United States military and economic superiority, in reality they either despise it or see it as only a complicating factor for their own problems and concerns. If the United States wants other states to combat terrorism it must first help them provide for the economic and social development of their own people. It would be irrational for most developing countries to prioritize combating terrorism when they have so many other problems at home such as the lack of adequate health care or education for large portions of their population. Rather than spending the billions of dollars that a military response to attacks will undoubtedly devour, the United States could do more to prevent future attacks by committing these resources to combating the curable diseases from which so many children around the world die, to ensuring basic education for everyone anywhere in the world, and to ensuring a minimum standard of living is provided to every person on the globe. Yes, these political aspirations are perhaps not immediately possible, but they are the actions and policies to which the United States committed itself in principle after the Second World War, but towards which little progress has been made.

Politics also require, and as it will be show international law encourages, that states act with respect to the principles of justice. Primary among these is the treatment of equal cases equally. When the United States intervenes to allegedly protect students in Grenada or to stop drug smuggling from Panama, but ignores the long-standing plight of the Palestinian or Sudanese people, it appears that it is applying a double standard of justice. In other words it appears as if the United State is acting unjust. Such contradictions have to be resolved on the basis of a global consensus if we are to live on one planet without the threat of attacks like those that took place in New York and Washington. If people around the world cannot expect us to act on principles that are equally valid in all cases, we cannot expect others not to use the only means they might have at their disposal to communicate their message to Americans. Many more people have died as the result of inaction or even United States support for the violence perpetrated in Palestine and Sudan than died in the recent attacks on the United States. If we are to justify action in light of the recent attacks, must we not also respond to the other atrocities in which we are partial conspirators? If we do not, will any amount of force really be able to move us towards a world in which there is justice without violence?



The insight of emotion and politics indicate that the best defense against such attacks is to ensure that an environment exists where there will be as few people as possible who feel that such violence is the only way out for themselves and those around them.

International Law

As Fredrick Krigis has pointed out in a contribution to the American Society of International Law’s online Insight forum, the reprisals involving the use of force are of questionable legality under international law. While this statement is undoubtedly true it is only the tip of the iceberg of the international law that lingers under the surface of international society with little daily relevance until such horrific incidents cause it to rise and become relevant.

The fundamental principles of international law that must be considered by the United States are those of sovereignty and the prohibition on the use of force.

The principle of sovereignty holds that every state is equal under the law. It does not, of course mean that every state is ‘equal’, but only that international law should be applied to all states equally. A careful observer will understand that this fiction strengthens the status quo in the international community because if all states are to be treated equally then those who are ‘more equal’ than others are likely to remain that way. This is not entirely true, because there are instructions for providing for a form of affirmative action for the less equal—for example article 55 and 56 of the Charter of the United Nations— but this is not the place to expound upon these types of corrective measures. The important point is that respect for international law not only provides some certainty even for the less powerful states, but it also contributes to establishing the United States’ position as a world leader.

The principle of sovereignty also means that states are given the discretion to act in ways that they see fit as long as they do not violate international law. In the overwhelming majority of cases this means that states do not have to act, alone or with other states, unless they have agreed to do so. Sometimes this agreement may be based on customary international law, but usually it is based on treaties.

Any use of force whether or not it violates the international jus ad bello, must nevertheless respect the international jus in bellum. Some of the relevant customary international involves both how states act in armed conflicts and how they use force. Customary international law, according to the International Court of Justice in the Nicaragua Case, requires a state to respect the dictates of common article 3 of the four Geneva Conventions from 1949 when resorting to the use force. This article includes prohibitions against torture, inhuman treatment, outrages to personal dignity, and the need for judicial guarantees in trials. In addition, customary international includes a prohibition on the targeting of civilians. It is also arguable that customary law imposes additional restrictions that require that any use of force—legal or illegal—must also be proportionate to the situation, avoid destroying facilities needed for the everyday life of a civilian population, avoid destroying dangerous installations, and be conducted under the strictest guidelines of military necessity. The latter requires, of course, that guidelines of necessity be clearly established in advance and that they themselves be in accordance with international law.

Customary international law also generally prohibits the use of force against the territorial integrity or political independence of another state. But since both of these prohibitions are established in treaties that the United States and most other countries have ratified, they will be discussed below.

The last consequence of sovereignty is not what it requires but the freedom it allows states. This is an important constraint on the United States ability to respond to these acts of violence even if it identifies the culprits. To respond abroad will undoubtedly require crossing the territory of another country, perhaps even using that territory as a launching pad for such an attack. This requires—because of the sovereignty of each and every country—the agreement of that country. Without that agreement the United States may itself be violating the territorial integrity and political independence of another country, contrary to customary international law.

At the same time sovereignty allows states to decide, unless they have signed a treaty agreeing to certain action, how to deal with the perpetrators of such horrendous crimes who are found within their territory. In many cases, it will be seen that treaties limit this freedom. In the instance case, the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation may be relevant, as it requires states to cooperate with other states. It requires cooperation by the sharing of information about assailants (art. 12), in criminal proceedings in another country (art. 11), and matters if extradition (art. 8). Most importantly, however, it requires a state having in its possession an alleged offender to try or extradite that offender to another state that will try him or her (art. 7). It does not require extradition, nor does it allow the kidnapping of offenders by a state that has a right to try the offender. This treaty applies to countries that have ratified it and these include Afghanistan and the United States. Where this treaty does not apply a state is free to treat offenders as it sees fit, even to grant them asylum, under international law.

The consequence of the United States’ failure to respect international law’s basic principle of sovereignty could, in the future, lead other states to act in similarly unlawful ways, citing the United States’ action as a precedent. For example, if the United States were to bomb Afghanistan because of its alleged involvement in the bombings, its unlawful disrespect of Afghanistan’s sovereignty will send the message to the world that the use of force against the sovereignty of another country is legitimate when there is an ‘important issue at stake’ for the country or entity using force. It is similar to the domestic situation where the police resort to vigilantly activities to suppress crime. Although the summarily execution of criminals may have a short term effect on combating crime, it will usually also have a detrimental effect on society, in part, because criminals will understand that they must shoot at the police to defend themselves.

This brings us to the rules involving the use of force. The starting point is undoubtedly article 2(4) of the Charter of the United Nations. This article prohibits “the threat or use of force against the territorial integrity or political independence of any state.” The essence of the article is to prohibit states from using unilateral force to resolve their disputes. Although it has not been as successful as its drafters would have hoped, it has provided some degree of constraint on state action. It also has exceptions.

The indications of the United States government in the immediate aftermath of the attacks are that it will use force against the country or whatever entity perpetrated the acts of violence. The statements by the United States government indicate not that such use of force will be to repel an ongoing attack or even to prevent another eminent attack, but rather to extract retribution for the 11 September attacks. This justification sounds very much like a reprisal.

The international law concerning the use of force prohibits reprisals using armed force. This principle was unambiguously established in paragraph 6 of the 1970 UN Declaration on Principles of International Law in the Section on the Principle of the Use of Force. Although this declaration is itself not binding it reflects a long-standing trend in the jurisprudence of international tribunals and in the writings of highly qualified publicists that unequivocally holds that the use of force in reprisal is illegal under international law. Although writers such as Derek Bowett have questioned whether this rule is realistic, whether states have always complied with it, or even whether there is condemnation when it is not complied with, even such skeptics do not dispute its continued validity./1

Another justification for the use of force may be self-defense. Legitimate self-defense requires, however, that the acts be taken to thwart or respond to an armed attack or to prevent an impending attack, not merely to extract retribution. Given the statements of the American government to date as well as the length of time between the 11 September attacks and any action, it is unlikely that self-defense could be used as a believable justification of any resort to armed force. In addition, the concept of armed attack both under customary international law and in article 51 of the Charter of the United Nations is intended to apply to attacks carried out by states. Where the perpetrator is not a state or not even identifiable, the justification of the self-defense is not intended to apply.

Other justifications such as the protection of citizens or humanitarian intervention have tenuous legal roots at best. In addition, these justifications, in so far as they exist, are also intended to apply against states. Even assuming that they could be used to react to the actions of non-state actors, it is unlikely that the element of intention that is necessary to invoke either justification could be realistically argued given the United States statements about retribution and revenge.

Does this mean that force cannot be used by the United States in accordance with international law? Yes and no. Although it is unlikely that the unilateral use of force can be carried out in accordance with international law, it is possible that collective use of force can be justified under article 42 of the Charter of the United Nations. This article is part of Chapter VII of the Charter that contains a system for allowing for the use of force under the guidance of a multinational Military Staff Committee and ultimately the United Nations Security Council. While United States politicians may feel uncomfortable with invoking these provisions because they limit their control over any use of force, doing so would provide any action such a legitimacy that it would enhance the rule of international law in a way few events have done since the advent of international law. This is an area where law and politics converge.

Given these rules of international law relating to the use of force it is not only improbable, but—to borrow from the logic of the International Court of the International Court of Justice in the Nuclear Weapons Case—unthinkable of a unilateral use of force by the United States that would be legitimate under international law.

One caveat that should be added is that international law imposes only limited restraints on the United States actions against its own citizens or individuals it legitimately brings under its jurisdiction. These restraints are found in international human rights law. Briefly stated they require that the United States not torture any suspects, to provide them a fair trial, and to respect the security of their person while they are in detention. Depending on the crimes with which any defendants are charged, invocation of the death penalty or other excessive sentences may also be prohibited by international human rights law. Of primary importance in deciding whether international human rights law is being adhered to will be the Inter-American Commission on Human Rights and the American Declaration of the Rights and Duties of Man.

Decision-making: Emotions, Politics and Law

The United States government will have to consider both the aspects of emotion and politics as well as the rules of international law when it reacts to the 11 September attacks. How it does this will make all the difference to the message it sends to the world, to its allies, and perhaps most importantly to its enemies.

While the understandable tendency will be to react with emotional outrage and in a way that expresses political and military power, this may only increase the harm already perpetrated on the United States and the international community by the attack.

Individuals who resort to violence welcome responses that are violent. Perhaps no better evidence of this can be found then in the United States’ most recent past in the case of the Oklahoma City Bomber, Mr. Timothy McVie, who went to his death unrepentant and laughing at the horrible deed that he committed.

It is too simple to think that the Saddam Hussein’s and Osama Bin Laden’s of the world will feel repentant for any atrocities they have committed just because the United States expresses its anger through the use of force.

The essence of terrorism, that is often misunderstood, is that of being an underdog. This enables the terrorist to act in the most extreme way in order to achieve even a modest goal and knowing that even if he or she loses something, including his or her own life, it is likely his or her point will be made because of the other party’s reaction. It is the reaction of the stronger party against the weaker that helps the terrorist to maintain his or +her stature as a freedom fighter and a hero to the weak and oppressed. Whether such thinking is morally right or wrong is not as relevant as is confronting the reality of it.

Those who resort to the use of force against the United States are aware that this country is militarily and economically powerful. Their criticism of its way of life relies on showing that the United States is also unjust and unmerciful. One way of doing this is by convincing the rest of the world, even those states that politically agree with the United States, that the United States does not respect international law.

A massive expression of military might against a country such as Afghanistan, Iraq or Sudan does not add to the United States’ claim of military superiority, but rather to the claims of its enemies that it does not respect international law.

Alternatively, a reaction based upon international law that involves the international community and the mechanisms that have been established to maintain law and order, will go some way towards showing that the United States is as law abiding as it is powerful. It may usher in a new era of international cooperation, one based on respect for the value of human life everywhere and one based on real respect for international law. What better monument could American build to the memory of all those who died or suffered from the latest attack. What better way could American express is the magnanimity of its greatness.

Notes:

/1 Bowett, D., “Reprisals Involving Recourse to Armed Force,” 66 American Jounal of International Law 1 (1972).

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