Mother May I (Hit Back)?

Name Withheld by Request, Vol. 36 Associate Editor

It seems that every day we turn on the news, another terrorist attack occurs. A couple days ago Denmark[1], a month ago Paris[2].  Two Tuesdays ago, a video surfaced purporting to originate from ISIS, showing a Jordanian pilot, Lt. Muath al-Kaseasbeh, burned to death while trapped in a cage.[3] In response, King Abdullah II of Jordan promised a strong military response, including striking ISIS weapons depots and training sites. Jordan and ISIS had spent days attempting to work out negotiations to swap prisoners, until the video revealed ISIS savagely burning a human being alive. While this story ended in a terrible tragedy, the legal aspects surrounding it are numerous and multi-faceted. Two of the most fascinating pieces include 1) that a sovereign state attempted to bargain with an uncivilized terrorist group, and 2) the response of that same sovereign state to the terrorist acts. Realistically, Jordan had two options: wait like a sitting duck or attack, and without asking any permission it chose the latter. The question arises: how does a state legally deal with a group that is illegal in the first place? September 11, 2001 is a day that changed every person’s life—not just Americans. A group of 19 Al-Qaeda terrorists were able to hijack four airplanes and use them as weapons to kill 2,977 innocent civilians. Every country from Australia to China to the United Kingdom had to rethink about the world and its position in it. Many people—both at home and abroad—felt that the United States could never fall. People internationally began to wonder that if something this earth shattering could happen to the “untouchable” United States, then it surely could happen in their backyards too. National security and airport policies changed dramatically worldwide, and the treatment of non-state actors and terrorist groups has been seriously examined as groups like the United Nations and NATO have had to learn how to cope with attacks from rogue actors. The first issue is to determine what constitutes self-defense under Article 51 of the UN Charter. The Charter states that a member of the UN shall have the right to self-defense if an armed attack occurs, but that it must be reported to the Security Council immediately.[4] However, it is unclear the legality of a state assert this doctrine against a non-state actor, since when the UN Charter was written, it envisioned nations working together to promote peace and security.[5] The UN Security Council immediately responded to the 9/11 attacks, calling on all states to work together to hold the perpetrators accountable.[6] The Security Council’s tone and speech, led by the United States, was understandably very aggressive, considering it was in response to the most gruesome attack ever on American soil. On that same day, the North Atlantic Council agreed that this attack would be regarded as an attack against all of the North American and European Allies and pledged their commitment to collective self-defense under Article 5 of the Washington Treaty.[7] A few weeks later, the Security Council passed another resolution calling for countries to cut off funds to participants in terrorist acts, effectuate control of their borders, and cooperate with international and domestic law and multilateral agreements, among other things.[8] There was a major push in both UN Resolutions to make all countries a part of conventions and protocols related to terrorism to encourage every state to clamp down on terrorism within its borders. The international community, led by the US, wanted to ensure that perpetrators were not abusing refugee status. However, even with these hardened stances on immigration and collaboration and seemingly greater ability to engage in self-defense, the judiciary, specifically the International Court of Justice, was not too keen on granting countries the right to self-defense against rogue actors, even in the aftermath of 9/11. It refused to give Uganda this right after the Allied Democratic Forces, a Congolese rebel group attacked, holding it to a seemingly high standard.[9] The same was true of the Security Council with its response to Israel’s retaliation to Hezbollah’s acts.[10] Even after the Uganda ICJ decision in 2005, the UN Security Council did nothing to amend the UN Charter. Though there was greater international consensus that terrorist groups could be included as a group under Article 51 that could warrant self-defense, there was never an official change in the law. The Court also indicated its belief that because there was an absence of action by the third-party state government (the state not directly perpetrating the terrorism, but which has a large segment of the group in its country), it does not necessarily mean acquiescence in the terrorist group’s actions.[11] In his dissent, Judge Simma chastised the ICJ for acting weakly and not specifically addressing the DRC’s claim that Uganda engaged in an act of terrorism,[12] but neither did the Security Council. However, as Judge Simma points out, the UN Security Council has “its own political reason for refraining from such a determination,” whereas the Court, as the “principal judicial organ of the United Nations, does not have to follow that course.”[13] While those that write the laws may try to skirt around them, it is the primary function of the judiciary to ensure that countries actually follow it as its codified. Judge Simma convincingly argues that, “the Court creates the impression that it somehow feels uncomfortable being confronted with certain questions of utmost importance in contemporary international relations.”[14] The Security Council’s response to acts of terrorisms and countries’ handling of terrorist groups within its borders has been mixed. In 2006, it came out extremely harshly in regards to Israel’s actions against Hezbollah.[15] Israel claimed those actions as self-defense and only against targeted Hezbollah strongholds in response to missile targeting of Israel and the kidnapping of two Israeli soldiers. The UN called on both sides to “show restraint and allow diplomacy to work”.[16] While Lebanon and Israel may have been able to try to come up with a solution, such types of actions should never be taken with regards to terrorist groups like Hezbollah. First of all, sitting down and talking with a terrorist organization gives it authority and an equal place at the bargaining table. Problems like setting a bad precedent arise[17], as they did with the US release of prisoners from Guantanamo Bay for Bowe Bergdahl. Terrorist groups do not value human life, as evidenced by attacks ranging from September 11 up until this most recent attack in Denmark. Radicals that do not even remotely possess the same humanitarian values cannot be expected to value lives as the civilized world does. While much of the world may not have liked the way Israel reacted to the Hezbollah situation, it seems preposterous to make a country whose citizens have been slaughtered by a terrorist group even sit down with terrorists or a country that has harbored terrorists or done next to nothing to combat the terrorism. It is why rather than play nice with Syria over ISIS, Jordan decided to take matters into its own hands.[18] Terrorist groups cannot be thought of in terms of diplomacy or in the same realm as countries that have signed on to the UN Charter, unless they are willing to play by the rules of democracy.[19] The member states of the UN Charter have leaders that ostensibly represent their people. It is the job of a sovereign nation to protect its citizens. Groups like ISIS cannot be granted this same deference. This is also in large part due to the fact that there is no way to enforce these groups’ actions. If a non-state actor does not have a location or even an identifiable leader that can be held accountable, how can a country or group of countries go after them in self-defense? Many times it can be even more harmful not to deal with these groups until later because then they are able to gain traction, as ISIS has, and pose an even larger threat, as they have been continuously doing in places like Egypt.[20] The world has changed drastically since September 11, 2001, and so too must its ways of dealing with terrorist organizations. At this point in time, there is very little world agreement on what constitutes self-defense, especially with regards to non-state actors. Until this issue is resolved, the same debates occurring between the US, UK, France, and other countries around the world over ISIS will continue to wage on in the courts and in governing bodies. Though it is difficult to come to a consensus in international law, it is essential to maintain peace and security (the purpose of the UN Charter) in a post-9/11 world, since the lack of consensus has put many countries in a difficult situation, sandwiched between the lack of international legal and institutional support for attacking terrorists and the negative effects of even attempting to negotiate with such organizations.

1] See http://www.cnn.com/2015/02/16/europe/denmark-shootings/ (accessed February 18, 2015).