Legitimate use of military force against state-sponsored - Air University

On the efforts to establish an international criminal court, see Convention for the Creation of
an International Criminal Court, opened for signature at Geneva, 16 November 1937,
C.94.N4.47. l938.V. For a contemporary discussion of the issue, see M. Cherif Bassiouni, ed.,
International Terrorism and Political Crimes, 3d Conference on Terrorism and Political Crimes,
1973 (Springfield, Ill.: Charles C. Thomas for International Institute for Advanced Criminal
Sciences, 1975). Regarding the possibility of such a court, this author agrees with Prof Kay
Hailbronner of the Federal Republic of Germany, who states: “I think there is no chance
whatever of reaching agreement on that.” Hailbronner quoted in ILA, “International Terrorism,”
Report of the 56th Conference, 118.
For comments on efforts to create an international force to combat terrorism, see “Terrorism:
International Force the Best Way to Fight It,” editorial, Fort Worth Star-Telegram, 1 May 1986,
reprinted in “Special Edition—Terrorism” published by the Air Force News Clipping and
Analysis Service, 3 July 1986, 38. In the present study, the author agrees with Grant Wardlaw (p.
103): “The diplomatic and political implications of, for example, an international anti-terrorist
strike force are such that suggestions of this kind are never likely to be translated into reality.”
On the efforts to establish a special jurisdiction and legal process for terrorism, see Paul
Wilkinson’s discussion of French president Valery Giscard d’Estaing’s suggestion of creating a
European judicial zone. Wilkinson sees progress in this area as unlikely. Wilkinson, “Proposals
for a Liberal-Democratic Government Response to Terrorism and Low-Intensity Violence at
Domestic and International Levels.” in Terrorism and Beyond: An International Conference on
Terrorism and Law-Level Conflict, ed. Brian M. Jenkins (Santa Monica, Calif.: Rand Corp.,
December 1982), 220-23, Rand, R-27 14-DOE/DOJ/DOS/RC
Concerning the development of new customary rules, see article 38(1) of the Statute of the
International Court of Justice, which provides that international custom is “evidence of general
practice accepted as law.” Two basic conditions are required to create customary law: the
practice of states (material element) and the belief that the practice has been accepted as law (the
psychological element referred to as opinion juris sive necessitatis). This second element
distinguishes customary international law from international comity or courtesy (comitas
gentium). The possibilities of developing customary law, as distinguished from conventional or
treaty law, in meeting the challenge of terrorism may have potential. Further research into this
area of the law is needed.
9. International law is but one factor to consider in making a foreign policy decision to use
military force. As Brian Jenkins notes,
How many incidents are likely to warrant a military response? Very few, judging
by the historical record… Nor is the United States likely to carry out military
operations on the territory of the Soviet Union or Eastern Europe… Military
operations in response to terrorism are likely to involve a handful of hostile
countries in the Third World where the United States has incontrovertible
evidence that agents in the employ of a government have carried out a terrorist
attack, that a government has instigated a terrorist attack or permitted one to occur
through willful negligence, or that a government is able to bring the perpetrators
to justice hot refuses to do so. If we apply these criteria… a military response
might have been contemplated in only a handful of episodes—less than one
percent.