International Law after 9/11
Sunday, 11 September 2011 15:14
The first person to tell me that a plane had hit the World Trade Center said so almost jokingly in the apparent assumption that it was a small aircraft. It had been only 6 weeks since returning from New York after a 4 month stay as an intern. As the gravity of the situation dawned, the speeches at the reception for the opening of the academic year took a decidedly different tone. And despite the slow realization that the unthinkable had happened among many, I distinctly remember muttering the words ‘oh, s@#t, World War III’. Why did I do that? Ten years after 9/11, can it be said that life has really been profoundly changed? Has the field of international law changed fundamentally to be able to respond to this new form of catastrophic terrorism?
One could debate whether what ensued after the events of 11 September 2001 was indeed a ‘world war’ on par with those of the 20th century, but 9/11 is widely seen as a day that changed the world as we knew it on 10 September 2001. It was not an instant paradigm shift though, as it has been frequently and dramatically proclaimed. The dramatics were justified to the extent that a military reaction by the United States was all but inevitable. Terrorism with Islamic motivations had been around for a while, and Osama Bin Laden was already a household name in many circles. Efforts to stop his campaign and arrest his person were already internationalized through, for instance, the United Nations, sparked by the bombings of the US embassies in Tanzania and Kenya, and the American naval vessel USS Cole. But the global developments that provided the breeding ground for Islamic terrorism has been around even longer. Terrorism is an exponent of the dark side or negative effect of globalization, as it confronts previously closed communities with people, religions, cultures, norms and values other than their own. And the globalized culture of commerce, certain personal freedoms and the goal of equal treatment of women to men, mixed with little prospect for certain people to connect, integrate and profit from the world economy, creates crises of identity and hopelessness. The rules of international law lie at the foundation of globalization, which has been quite beneficial overall, and international law needed to respond to this frontal attack on globalization.
xIf the Vitoria Institute has one clear position on an issue, it is that international law and politics are intertwined, and the role of one cannot be understood separate of that of the other. So the political reality of the post-9/11 challenged international law on a number of fronts to keep up. First, the legal basis for the military response was unclear for less than 48 hours, until the UN Security Council adopted resolution 1368 (2001). In that resolution, the Council implicitly recognized that the United States had a right to self-defense under Article 51 of the UN Charter with respect to the 9/11 terrorist attacks. This was almost as earth shocking as the 9/11 attacks themselves. The right to self-defense was, and arguably is, reserved for armed attacks between states that need to be repelled immediately. With an unidentified, non-state assailant an immediate response is not possible. To a certain extent, the prohibition on states to knowingly harbor terrorists was upgraded from a ‘mere’ use of force to an ‘armed attack’, which is an aggravated form of force. Therefore, the ruling Taliban in Afghanistan could also be legitimately and legally be held responsible and targeted. This legal construct was accepted by the international community in light of the 9/11 attacks, but was starting to wear thin five years down the line in the case of Afghanistan and as a general concept. Moreover, the uneasiness with a right to self-defense against an unidentified opponent and in response to a single attack that may be over in minutes, remains. Next to the inter-state requirement, international law emphasizes that the traditional right to self-defense be exercised immediately during or after the attack and because it is absolutely necessary. Moreover, an unbridled right to self-defense against a non-state actor treads on the sovereignty of the state and its territorial integrity to a perhaps unacceptable degree. Yet, to this day there is no consensus on whether the right to self-defense has now taken on this wider dimension.
When armed force is used, certain international rules apply, mostly contained in the so-called Geneva Conventions, adopted in 1949. These rules are admittedly written for conventional wars, and the new proclaimed ‘War on Terror’ was all but conventional. In Afghanistan neither the Taliban or Osama Bin Laden’s Al Qaeda did not fight according the civilized rules on warfare, bringing the conventional armies of the United States and assisting countries into a legal and moral crisis on the battlefield where the opponent was part of the civilian population. The opening and operation of the Guantanamo Bay prison placed the United States at odds with its own values and promise. Not only did this War On Terror drain American financial power, but also its moral or soft power, and which was being quietly eroded through globalization anyway. It was widely debated whether the conventional international rules on warfare could even be applicable in this kind of struggle. Indeed, in the eyes of the US at the time, there had been a paradigm shift not only in approaching terrorism from an armed conflict paradigm instead of a law enforcement paradigm, but also it seemed in moral thinking. The tortured language in the Torture Memo’s that looked for a legal avenue to excuse techniques that essentially still amount to torture, as common sense would define it. The practice of targeted killing in, for instance, through unmanned drones in Pakistan also provoked on ongoing discussion about the application of either human rights law or international humanitarian law or the laws of war. This discussion has not resulted in a legal consensus, because it is in essence a political choice, so its outcome depends on the political perspective on the nature of the issue, terrorism.
September 11th, 2001 is an emotional, political and legal landmark in history. My favorite quote about the law is this: ‘When the law ceases to reflect the realities of life, it is the law, not life, that will change.’ 9/11 was but a moment, however significant and dramatic, in a process in which life was indeed changed. It changed incrementally, as did the law. However, while 9/11 opened our eyes to the changes in international life, we are still struggling to find the appropriate legal response in modern international law.