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A Lack of Language – Waging War or Combatting Crime? The Blurred Rule of International Law in the Face of the Attacks of September 11, 2001

Published online by Cambridge University Press:  06 March 2019

Claus Binder

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After the terrorists' attacks of September 11, 2001, a lot of war rhetoric came out of the public and private sphere within the United States of America. On October 7, 2001, however, the rhetoric turned into reality as President George W. Bush countered the terrorist attacks and the threat of future terrorism with military means. While waging that new war U.S. governmental officials constantly make one important point, and that is that the United States are just exercising their right of self-defense. Moreover, on the day after the attacks, the Security Council of the United Nations unanimously reaffirmed the inherent right of self-defense as recognized by the Charter of the United Nations. Does that mean that international law is just that clear?

Type
Research Article
Information
German Law Journal , Volume 2 , Issue 17 , 2001 , E1
Copyright
Copyright © 2001 by German Law Journal GbR 

References

(*) I wish to thank Professor Benjamin B. Ferencz and Professor Anne-Marie Slaughter, who inspired me at Harvard while drafting this article.Google Scholar

(1) Demosthenes (ca. 341 B.C.), quoted by Hugo Grotius, De Jure Belli ac Pacis Libri Tres, 1624, Prolegamena, para. 25 (On the Law of War and Peace, translated by Francis W. Kelsey, 1925).Google Scholar

(2) Resolution 1368 (2001), adopted by the Security Council on September 12, 2001 (S/RES/1368 (2001)), available on the internet at http://www.un.org/terrorism/sc.htm.Google Scholar

(3) SÜDDEUTSCHE ZEITUNG (http://www.sueddeutsche.de), September 14, 2001, p. 6.Google Scholar

(4) Convention on Offences and Certain Other Acts Committed on Board Aircraft of September 14, 1963 (Tokyo Convention), 2 I.L.M. 1042 (1963); Convention for the Suppression of Unlawful Seizure of Aircraft of December 16, 1970 (Hague Convention), 10 I.L.M. 133 (1971); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of September 23, 1971 (Montreal Convention), 10 I.L.M. 1151 (1971).Google Scholar

(5) However, no effective enforcement machinery was created to cooperate in suppression of acts of hijacking and in international terrorism. In this regard, mention can be made of various declarations adopted at G-7 summits calling for collective action against countries harboring airline terrorists. See the Bonn Declaration of July 17, 1978, 17 I.L.M. 1285 (1978). Subsequent declarations can be found at 20 I.L.M. 956 (1981) or at 25 I.L.M. 1005 (1986).Google Scholar

(6) Resolution adopted by the General Assembly on September 12, 2001, on Condemnation of Terrorist Attacks in the United States (A/RES/56/1); Resolution adopted by the General Assembly on January 30, 2001, on Measures to Eliminate International Terrorism (A/RES/55/158), available on the internet at http://www.un.org/terrorism/ga.htm. Both with references and reaffirmations to former resolutions.Google Scholar

(7) Resolution 1373 (2001), adopted by the Security Council on September 28, 2001 (S/RES/1373 (2001)); Resolution 1368 (2001), supra note 2, available on the internet at http://www.un.org/terrorism/sc.htm. Both with references and reaffirmations to former resolutions.Google Scholar

(8) German officials, however, have tried to avoid the rhetorics of war. Having done that just after the attacks, German Chancelor Gerhard Schröder re-adjusted his language. On the party convention of the Labour Party of Great Britain at Brighton, England, on October 1, 2001, Schröder “honored Samuel Huntington” and spoke of the need to resist to get involved in a “clash of cultures” as the terrorists want to promote it. Gerhard Schröder, Wider die gesichtslose Barbarei, at http://www.zeit.de/reden/Weltpolitik/Schroeder_10.01.2001.html. See also SÜDDEUTSCHE ZEITUNG (http://www.sueddeutsche.de), October 2, 2001, p. 1.Google Scholar

(9) See Stanley Fish, Condemnation Without Absolutes, NEW YORK TIMES (http://www.nytimes.com), October 15, 2001, Op-ed., A23, addressing those critics who demand the end of postmodernism.Google Scholar

(10) “Not so. Postmodernism maintains only that there can be no independent standard for determining which of many rival interpretations of an event is the true one. The only thing postmodern thought argues against is the hope of justifying our response to the attack in universal terms that would be persuasive to everyone, including our enemies. Invoking the abstract notion of justice and truth to support our cause wouldn't be effective anyway because our adversaries lay claim to the same language. (No one declares himself to be an apostle of justice.)” Fish, id.Google Scholar

(11) Id.Google Scholar

(12) In the end, the reaction to the attacks of September 11, 2001, and its impact on international law might show that international law is, in fact, more open towards pragmatic policy arguments than admitted by the schools of positivism, and might prove the New Haven School's arguments as being not as off-path as being constantly put forward. For that school see e.g. David Kennedy, A New Stream of International Law Scholarship, 7 WIS. ILJ 6 (1988); Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205 (1993).Google Scholar

(13) See for an elaborate approach to that issue Florian Hoffmann, Watershed or Phoenix from the Ashes? –Speculations On The Future Of International Law After The September 11 Attacks, 2 GERMAN L.J. 16 (October 1, 2001) (http://www.germanlawjournal.de).Google Scholar

(14) See e.g. Bredow, Wilfried von, Die Zukunft des Krieges. Gewalt, Politik, Staat, FRANKFURTER ALLGEMEINE ZEITUNG (http://faz.net), September 27, 2001, p. 11, who redefines the term “war” in the light of the new paradigm “global terrorism” as being a military conflict which does not necessarily need state actors on both sides.Google Scholar

(15) See Habermas, Jürgen, Bestialität und Humanität. Ein Krieg an der Grenze zwischen Recht und Moral, DIE ZEIT, April 29, 1999, p. 1, 6 and 7, at 1 or at http://www.zeit.de/1999/18/199918_krieg.html, who foresees a transformation of international law to a law of world citizen (“Recht der Weltbürger”). An English translation of this highly controversial article is available at http://www.theglobalsite.ac.uk/global-library/011habermas.htm (translated by Franz Solms-Laubach).Google Scholar

(16) This is not the place to unfold the complex issue of the establishment of the International Criminal Court again. Nevertheless, it is worth to mention that talks about the establishment of a permanent International Criminal Court go back to the early 20th century. From the perspective of legal history cf. Vespasien V. Pella, La Criminalité Collective des Etats et le Droit Pénal de L'Avenir (Bucarest 1925); Hellmuth von Weber, Internationale Strafgerichtsbarkeit (Berlin 1934); Vespasien V. Pella, La Cour Pénale Internationale et la Répression du Terrorisme, 18 REVUE DE DROIT PÉNALE ET DE CRIMINOLOGIE 409 (1938); Sheldon Glueck, War Criminals, their Prosecution and Punishment (New York 1944), who expressed the wish that an international criminal court would get jurisdiction over “certain peacetime offences of a particular international interest” such “as acts of political terrorism”. Id. at 91 note 2. Moreover, the concept of a permanent International Criminal Court is not without precedent, and was discussed even in the respect of “terrorism”. A proposal of for an International Criminal Court was made by Baron Deschamps of Belgium while being in the process of drafting the Statute of the Permanent Court of International Justice (PCIJ) in 1920. It was miscarried, however. Cf. League of Nations, The Records of the First Assembly, Plenary Meeting, 1920, p 764. Another attempt to establish an International Criminal Court was initiated after the assassination of Alexander I of Yugoslavia at Marsailles in 1934. Cf. Convention for the Creation of an International Criminal Court, openend for signature at Geneva, November 16, 1937, in 7 INTERNATIONAL LEGISLATION 878 (Manley Ottmer Hudson ed., Washington, D.C. 1941); Convention for the Prevention and Punishment of Terrorism, openend for signature at Geneva, November 16, 1937, id. at 862. Neither of these agreements was ratified.Google Scholar

(17) See Rome Statute of the International Criminal Court (Rome Statute) of July 17, 1998, 37 I.L.M. 999 (1998). The Rome Statute was adopted at the close of a diplomatic conference in Rome from June 15 to July 17, 1998 against the U.S. opposition, see Thomas W. Lippmann, Wordwide War Crimes High Court is Approved. Delegates overrule U.S. objections, WASHINGTON POST (http://www.washingtonpost.com), July 18, 1998, A1. The U.S. refuse to ratify the Treaty ever since.Google Scholar

(18) See Anne-Marie Slaughter, Terrorism and Justice, FINANCIAL TIMES (http://www.ft.com), October 12, 2001, Op-ed., p. 23.Google Scholar