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

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The law of armed conflict approach considers international terrorism as primarily a military responsibility. Terrorists are viewed as unlawful or unprivileged combatants engaging in warlike or combatant activity. As such, terrorists are criminals whose arrest, prosecution, and imprisonment are universal obligations of all states in accordance with the 1949 Geneva conventions. When the use of military force abroad is required, such use takes place in the context of armed conflict. Under both approaches the terrorist is a criminal. However, it is incorrect to believe that terrorists would be given a status under the law of armed conflict other than that of unlawful combatants engaging in criminal conduct. The differences in these two approaches are highlighted by the choices offered in the following questions: Should international terrorism be a civil police or military responsibility? Should international terrorism be viewed as ordinary criminal activity or combatant activity? Is terrorism simply a crime or is it surrogate warfare? Should use of force abroad against international terrorists and their state sponsors or supporters be viewed as a peacetime crisis or as a response to armed conflict? Among the factors to consider in deciding which is the best approach to international terrorism are foreign policy and other political considerations, the nature of the threat, and the advantages and disadvantages of each approach. Foreign policy and other political considerations are beyond this study. The nature of the terrorist threat has been discussed in chapter 1. This chapter identifies the approach adopted by the West, including the United States; discusses the reasons for this approach and its advantages and disadvantages; and examines the alternate approach and its advantages and disadvantages. West Opts for Law Enforcement Approach The United States and other like-minded governments have tended to target terrorists as ordinary criminals subject to prosecution under domestic criminal law. Most efforts in the international arena have been directed at finding ways to enhance the effectiveness of applying domestic criminal law to terrorists. These efforts have included, for example, improving extradition procedures and bringing into being new multilateral and bilateral conventions criminalizing various acts of terrorists—such as aircraft hijacking—that can be prosecuted by national judicial authorities. The United States government and other Western democracies have organized to deal with terrorism in terms of law enforcement. The lead US agency for domestic terrorism is the Federal Bureau of Investigation (FBI). The FBI has transferred terrorism responsibility from its intelligence and sabotage division to its criminal division. This shift reflects the thinking of senior leadership that the terrorist is an ordinary criminal not a combatant. The Department of State, not the Department of Defense, is the lead US agency for international terrorism. Basic cooperation among nations is at the police-to-police or judiciary-to-judiciary level. Law enforcement responsibility is primarily a civil police and not a military function. In instances where military force has been used overseas against international terrorists or their sponsors, the action has been akin to law enforcement (hostage rescue attempts, for example) or
punishment of a state sponsor (the April 1986 raid on Libya). The state sponsoring or supporting international terrorism may be viewed as engaging in “armed aggression against the United States… just as if [it] had used its own armed forces” but international terrorists themselves will not be so recognized. 1 The military may feel uneasy and uncertain about its role in essentially a law enforcement function. Terrorists are not combatants, and military action is not taken in a warlike context. Military actions against terrorists are characterized as a response to a peacetime crisis and not an armed conflict. Moreover, in today’s world, military force generally is seen as an ineffective means to project power abroad. Hence, in this context, the law of armed conflict does not apply to international terrorists. Some may argue that this view is changing and that terrorism now is viewed as essentially a form of warfare. Brian Jenkins of the Rand Corporation has concluded that “terrorism indeed has become a new mode of warfare.” 2 Terrorist expert Paul Wilkinson of the University of Aberdeen agrees: “International terrorist attack is simply a different mode of war, not an alternative to war as such.” 3 But other experts do not fully agree. Some experts see a trend in that direction but are guarded as to whether terrorism has really become warfare. 4 Government officials in the United States have joined the discussion with some strong words about terrorism as warfare. Jeane J. Kirkpatrick, former US permanent representative to the United Nations, has asserted that “terrorism is a form of war.” 5 Ambassador Vernon Walters, her successor, agrees, “We are not dealing here with the acts of individuals or groups but rather with a state policy to use force by clandestine means or, as one speaker in the debate put it, ‘war by another name’.” 6 Secretary of State George Shultz is quoted as saying that terrorism is “no longer the random acts of isolated groups or local fanatics,” but rather it “is now a method of warfare.” 7 The Long commission, appointed by Secretary of Defense Caspar Weinberger to investigate the October 1983 bombing of the Marine Corps headquarters in Beirut, characterizes the threat to the United States as “terrorist warfare, sponsored by sovereign states or organized political entities to achieve political objectives.” 8 Ambassador Robert Oakley, head of the Department of State, Office of Counterterrorism, speaking in September 1985, placed terrorism into the conflict spectrum as a “form of low-intensity warfare.” 9 Although Defense Department agencies continued to struggle with the issue, the Joint Chiefs of Staff (JCS), in November 1985, approved a definition of low-intensity conflict that included terrorism. Low-intensity conflict is a limited politico-military struggle to achieve political, social, economic, or psychological objectives. It is often protracted and ranges from diplomatic, economic, and psychosocial pressures through terrorism and insurgency. Low-intensity conflict is generally confined to a geographical area and is often characterized by constraints on the weaponry, tactics, and level of violence. 10
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LEGITIMATE USE OF MILITARY FORCE AG
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CONTENTS Page Disclaimer ii Forewor
Page 6 and 7: Chapter 7 USE OF MILITARY FORCE: TE
Page 8 and 9: ABOUT THE AUTHOR Lt Col Richard J.
Page 10 and 11: INTRODUCTION THE RELEVANCE OF INTER
Page 12 and 13: Chapter 7 summarizes the lessons le
Page 14 and 15: This Study, How Meaningful? States
Page 16 and 17: The international arena has seen so
Page 18 and 19: Combating terrorism accents this is
Page 20 and 21: 7. Many scholars and jurists have f
Page 22 and 23: Jenkins, “Combatting Terrorism Be
Page 24 and 25: Thoughts toward an International Co
Page 26 and 27: 29. See Vice President, Report on C
Page 28 and 29: CHAPTER 1 WHAT IS TERRORISM AND HOW
Page 30 and 31: If a general definition would be so
Page 32 and 33: Terrorism is the unlawful use or th
Page 34 and 35: International Terrorism: A Working
Page 36 and 37: there is evidence that President Id
Page 38 and 39: The Vice President’s Task Force o
Page 40 and 41: A Threat More Serious Than Numbers
Page 42 and 43: Diplomatic relations between countr
Page 44 and 45: And what has the challenge become?
Page 46 and 47: physically or by neutralizing their
Page 48 and 49: 27. UN General Assembly, resolution
Page 50 and 51: 44. L. C. Green of the University o
Page 52 and 53: 65. Information provided by L. Cart
Page 54 and 55: 105. See Stephen Sloan, Beating int
Page 58 and 59: But, as regards terrorism, the arme
Page 60 and 61: 1. If the law of armed conflict is
Page 62 and 63: Although both approaches, law enfor
Page 64 and 65: crime involved. This initiative has
Page 66 and 67: Symbionese Liberation Army (SLA) wa
Page 68 and 69: eaches, prosecution, and extraditio
Page 70 and 71: the latter instance, no one claimed
Page 72 and 73: international law establishing indi
Page 74 and 75: Another issue is the choice and use
Page 76 and 77: NOTES 1. Department of State, “Li
Page 78 and 79: 28. Paul A. Tharp, Jr., “The Laws
Page 80 and 81: 1919 a process has been under way t
Page 82 and 83: 66. See Geneva Convention IV, artic
Page 84 and 85: CHAPTER 3 STATES HAVE RESPONSIBILIT
Page 86 and 87: International Terrorism and the Dut
Page 88 and 89: government exercises within its ter
Page 90 and 91: few states, although they do not vi
Page 92 and 93: to establish the linkage required u
Page 94 and 95: chapters 4-6 examine the second. Te
Page 96 and 97: all Members shall refrain in their
Page 98 and 99: valuable tools of self-help and of
Page 100 and 101: object the removal or destruction o
Page 102 and 103: 10. Jordan J. Paust, “Entebbe and
Page 104 and 105: 34. See “Terrorism’s Grim Upsur
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through activities that involve for
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CHAPTER 4 INDIVIDUAL SELF-DEFENSE A
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Strictly speaking, the right of ind
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Clearly, however, states may not re
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Although the degree of control that
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The expansive school’s belief tha
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What is the customary law on self-d
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await the arrival on scene of an ar
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Reasonable Response This element re
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Summary and Transition Individual s
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Security; Implications of Israel’
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In response to this line of reasoni
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American Society of International L
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Brownlie, “Use of Force,” 231.
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avoided if the focus is put properl
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The danger of conceding to individu
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Fifth, and finally, article 52, par
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12. See Rosalyn Higgins, “The Leg
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CHAPTER 6 OTHER LEGAL ARGUMENTS TO
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conditions necessary for invitation
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The action must be taken for a puni
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…Yet, essentially for reasons of
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The action must be necessitated by
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emained so once the operations were
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Perhaps the best ease for humanitar
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The state contemplating interventio
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Many have criticized the modern law
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NOTES 1. See J. E. S. Fawcett, ‘I
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27. Bowett writes, ‘‘Reprisals
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49. See Bowett, Self-Defence, 88. 5
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An International Journal 7, no. 2 (
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This study has considered each of t
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Piracy, which is limited to illegal
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NOTES 1. Joint Chiefs of Stall, Uni
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3. The action is taken to protect e
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Option 4: Collective Anticipatory S
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Option 8: Peacetime Reprisal Source
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8. The action is for a limited dura
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APPENDIX B UNITED NATIONS CHARTER (
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APPENDIX C STATUTE OF THE INTERNATI
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Crelinsten, Ronald D., Danielle Lab
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Almond, Harry E., Jr. “Using Law
Page 190 and 191:
Clark, Roger S. “Humanitarian Int
Page 192 and 193:
Harlow, Bruce, Lt Comdr, USN. “Th
Page 194 and 195:
Livingstone, Neil C., and Terrell B
Page 196 and 197:
Paust, Jordan 5. “Entebbe and Sel
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______. “Problems with the Applic
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Blum, Yehuda. State Terrorism and t
Page 202 and 203:
“European Convention on the Suppr
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______. Arms Control and Disarmamen
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______. “Terrorist Attacks on US
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