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INTERNATIONAL LAW AND THE USE OF FORCE IN RESPONSE TO THE WORLD TRADE CENTER AND PENTAGON ATTACKS
Professor Robert F. Turner
Associate Director, Center for National Security Law
University of Virginia School of Law
JURIST Guest Columnist

Did the terrorist attacks against the World Trade Center and the Pentagon constitute 殿cts of War permitting the United States to use lethal force beyond its borders? The wording is archaic, as formalities of 展ar largely lapsed more than half-a-century ago when the initiation of the kind of aggressive hostilities traditionally associated with declarations of War were outlawed. No country has clearly 電eclared War in more than fifty years, and more sophisticated scholars today speak of the 鏑aw of Armed Conflict rather than the 鏑aw of War.

Nevertheless, the underlying issue remains: May the United States resort to the use of lethal force beyond its borders in response to these horrific attacks; and, if so, how much force and against what targets? The clear answer to the first question is a resounding YES, but the second requires some elaboration.

International law outlaws the threat or use of lethal force by one sovereign state against another, with two clear exceptions. The UN Security Council may authorize states to use force, and states have an inherent right to defend themselves against unlawful uses of force and to aid other victims of aggression seeking help in collective self-defense. Such uses of lethal force must be necessary in the sense that effective peaceful alternatives are not available; and they must be proportional in the sense that force greatly excessive to that necessary to protect the state痴 lawful defensive interests is not permitted. Beyond that, international law also imposes constraints upon weapons and targets (thus, biological weapons are unlawful and hospitals may not be targeted unless used for military purposes, such as to house an anti-aircraft gun).

If the evidence shows that any country intentionally aided or abetted the terrorists, the United States and its allies may use necessary and proportional lethal force against those states to bring an end to such aid. Pirates and other non-state actors who engage in terrorism have minimal protection under international law (for example, they may not be tortured), and bin Laden is already a lawful target because of his past acts of terrorism and his public threats to attack Americans at every opportunity. I would add that the use of lethal force against bin Laden as a measure of self-defense would not be 杜urder, and thus, by definition, could not be 殿ssassination.

If (as has been claimed by the US and UK governments) bin Laden masterminded the attacks on New York and Washington, Afghanistan is in breach of its state responsibility to take reasonable measures to prevent its territory from being used to launch attacks against other states. The United States and its allies thus have a legal right to violate Afghanistan痴 territorial integrity to destroy bin Laden and related terrorist targets. If the Taliban elects to join forces with bin Laden, it, too, becomes a lawful target. In that event, the Security Council may eventually wish to consider the option of authorizing the establishment of a UN trusteeship for Afghanistan to promote relief efforts to avoid massive starvation and to set the stage for the transfer of power to an elected government willing to live in peace with the world.


Professor Turner is Associate Director of the Center for National Security Law at the University of Virginia School of Law, former Charles H. Stockton Professor of International Law at the Naval War College, and former three-term chairman of the ABA Standing Committee on Law and National Security. The views expressed are his own. This editorial was written prior to the US/UK attacks on Afghanistan on October 7, 2001; it was originally written for Knight-Ridder. Professor Turner welcomes comments on this op-ed at JURIST@law.pitt.edu.

October 8, 2001

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