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

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to establish the linkage required under the standard of sufficient evidence is to improve intelligence capabilities. How to Improve Intelligence Gathering? Counterterrorism, especially when countermeasures involving military force are concerned, requires the best intelligence. Intelligence is needed not only to choose the target, estimate possibilities of success or failure, and weigh the dangers of incidental civilian loss and damage, but also to establish direct ties between international terrorist incidents and the nation or organization behind them. Brian Jenkins, terrorism expert with the Rand Corporation, explains why evidence as to linkage is so fundamental. “Here the target is not the terrorist group, which may exist only as a voice on the telephone, but the patron state. To justify the use of force against another country, intelligence must prove the connection between the patron state and the terrorist perpetrators, a difficult task that takes time.” 55 The task is difficult because of the inherent nature of terrorist groups and their activities. As William Casey once observed, terrorist groups are very tough nuts for intelligence to crack. That is almost selfevident. They are small, not easily penetrated, and their operations are closely held and compartmented. Only a few people in the organization are privy to specific operations, they move quickly, and place a very high premium on secrecy and surprise. 56 Faced with this challenge, intelligence can and must be improved. Human intelligence (HUMINT) is of particular importance when it comes to terrorism. “White satellites and other technological gadgetry are necessary to collect intelligence to fight conventional and nuclear wars, accurate and timely human intelligence is necessary to wage war against terrorism.” 57 Yet, as the organization and mode of operation of terrorist groups demonstrate, HUMINT is difficult to obtain. The effort, nonetheless, should be there. Intelligence can be obtained from direct observation, analysis of past terrorist events, evaluation of known terrorist personalities, and studies of known terrorist groups by government and private organizations and citizens. But the best source of information will come from captured and defecting terrorists and from infiltrating active or potential terrorist groups. A major problem associated with infiltration, one which terrorists are well aware of is: will the infiltrator be permitted to commit a crime? A kidnapping? A murder? Terrorists will, no doubt, use the commission of a crime as dues for membership. The question, then, is, how far should governments go to gather intelligence? Guidelines must be clear, and democracies, by their nature, are severely disadvantaged. 58 Also those who gather intelligence, the United States as well as international agencies, need to increase their levels of coordination and cooperation. Obtaining intelligence on terrorism is difficult. The intelligence acquired must be put to maximum use by analyzing pieces of information in conjunction with other available intelligence. Former Senator Jeremiah Denton, while chairman of the Subcommittee on Security and Terrorism of the Senate Judiciary Committee, found the coordination and cooperation among the Department of State, the Federal Bureau of Investigation (FBI), the Central Intelligence Agency
(CIA), the Defense Intelligence Agency (DIA), the National Security Agency (NSA), the Drug Enforcement Agency (DEA), and various armed forces-intelligence agencies to be insufficient. 59 Cooperation among like-minded nations also needs to be improved. The 1976 Trevi arrangements for exchange of information and experiences on counterterrorism within the European Community are a step in the right direction. 60 But relying on an established international organization may not be the best way to foster cooperation. The International Criminal Police (Interpol), for example, is of limited use for the exchange of intelligence because of the membership of Arab states. 61 The 1986 Vice President’s Task Force on Combatting Terrorism made three recommendations to address the two issues raised above: (1) establish a consolidated federal intelligence center on terrorism, (2) increase collection of human intelligence, and (3) exchange intelligence between governments. 62 Additional areas that deserve attention include US laws, regulations, and directives. A complete and thorough review of the legal framework governing intelligence operations is needed to determine answers to the following questions. Has the United States achieved the proper balance between civil liberties and national security? Are the restrictions on intelligence agencies in their surveillance activities directed at American citizens and other persons appropriate? Are the regulations for use and dissemination of acquired information suitable and well reasoned? Are Attorney General William French Smith’s March 1983 criminal conspiracy guidelines for initiating domestic security terrorism investigations the way to go? 63 For example, some people argue that the Privacy Act 64 and the Freedom of Information Act (FOIA) 65 unduly restrict collection of intelligence. The latter is a particularly serious problem because of the “real risk of disclosure and possible cause of physical harm to someone who supplies information.” 66 Possibly, terrorists and terrorist organizations as well as unfriendly foreign governments can, through the FOIA, gain access to sensitive information. 67 The 1986 Anti-Drug Abuse Act contains language that amends the FOIA and may provide some protection to FBI files concerning, among other matters, international terrorism. But opinions are divided over what this amendment really means. 68 Perhaps a detailed analysis of the present state of the law is needed to identify and make any required changes in these two statutes. When Is Intervention Lawful? A state that fails, through act or omission, to meet obligations of state responsibility commits an international delict. In such circumstance the legal relationship between the delinquent state and injured state changes. Depending upon the nature of the wrong, the injured state’s remedy may be to submit a monetary claim; its option may, however, be the use of military force. Determining the legitimacy of the use or threatened use of force abroad involves two separate but intertwined legal issues. The first is the propriety of intervening into the territory of another sovereign. The second issue concerns the propriety of the use or threatened use of force itself under contemporary norms of international law. The first issue is considered here while
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LEGITIMATE USE OF MILITARY FORCE AG
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CONTENTS Page Disclaimer ii Forewor
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Chapter 7 USE OF MILITARY FORCE: TE
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ABOUT THE AUTHOR Lt Col Richard J.
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INTRODUCTION THE RELEVANCE OF INTER
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Chapter 7 summarizes the lessons le
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This Study, How Meaningful? States
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The international arena has seen so
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Combating terrorism accents this is
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7. Many scholars and jurists have f
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Jenkins, “Combatting Terrorism Be
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Thoughts toward an International Co
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29. See Vice President, Report on C
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CHAPTER 1 WHAT IS TERRORISM AND HOW
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If a general definition would be so
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Terrorism is the unlawful use or th
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International Terrorism: A Working
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there is evidence that President Id
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The Vice President’s Task Force o
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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 56 and 57: The law of armed conflict approach
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 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
Page 106 and 107: through activities that involve for
Page 108 and 109: CHAPTER 4 INDIVIDUAL SELF-DEFENSE A
Page 110 and 111: Strictly speaking, the right of ind
Page 112 and 113: Clearly, however, states may not re
Page 114 and 115: Although the degree of control that
Page 116 and 117: The expansive school’s belief tha
Page 118 and 119: What is the customary law on self-d
Page 120 and 121: await the arrival on scene of an ar
Page 122 and 123: Reasonable Response This element re
Page 124 and 125: Summary and Transition Individual s
Page 126 and 127: Security; Implications of Israel’
Page 128 and 129: In response to this line of reasoni
Page 130 and 131: American Society of International L
Page 132 and 133: Brownlie, “Use of Force,” 231.
Page 134 and 135: avoided if the focus is put properl
Page 136 and 137: The danger of conceding to individu
Page 138 and 139: Fifth, and finally, article 52, par
Page 140 and 141: 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
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Clark, Roger S. “Humanitarian Int
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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
Page 204 and 205:
______. Arms Control and Disarmamen
Page 206 and 207:
______. “Terrorist Attacks on US
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