Paris Attacks: An “Act of War”? Terrorism’s Place in International Law

Katrien Wilmots, Vol. 37 Associate Editor

On Friday November 13, 2015 three teams of coordinated attackers carried out terrorist assaults in Paris. There were three suicide bombings outside the Stade de France, mass shootings, and additional suicide bombings at four other locations. The deadliest attack was at the Bataclan theater where attackers shot and took hostages. 130 people lost their lives.[1] French President François Hollande’s response to the Paris attacks has echoes of President Bush’s rhetoric after September 11, 2001. Hollande invoked the language of war to describe what the terrorist attacks meant for France. He called the attacks an “act of war”[2] and instituted a state of emergency.[3] However, implicitly elevating a terrorist organization to the level of a sovereign entity that has the power to declare war complicates the traditional international law notion of warfare. Under international law, the concept of war is confined to conflicts between states.[4] After 9/11, Christopher Greenwood argued that “references to the attacks as ‘acts of war’, like the subsequent talk of a ‘war against terrorism’, are understandable in political terms but are not to be taken as referring to the concept of war in international law.”[5] Raising the Islamic State to the level of a sovereign entity is politically reckless not only because it’s a validation of their chief aim of statehood, but because there are further serious legal ramifications.[6] For one, an act of war against a NATO member can trigger Article 5 of the Washington Treaty[7] which can initiate obligations of support from the other treaty members.[8] The only time Article 5 has been invoked in its six-decade history was after 9/11. As mentioned above, the United States has already found itself ‘at war’ with a transnational non-state actor, namely Al-Qaeda. The U.S.’s “War on Terror” ushered in a shift in how to deal with terrorism. Previous administrations dealt with Al-Qaeda with peacetime, rather than wartime, law enforcement mechanisms; countering terrorism, not waging war against it.[9] A black hole in international law emerged: Al-Qaeda detainees were not prisoners of war nor were they civilians. Instead they were labeled ‘unlawful enemy combatants.’[10] The war on terror became a new type of war, a new paradigm, and in turn weakened existing international humanitarian law, especially in regards to the protection of civilians and the determination of POW status.[11] At the time, former Attorney General Alberto Gonzales noted, “this new paradigm renders obsolete [the] Geneva [Convention]’s strict limitation on questioning of enemy prisoners and renders quaint some of its provisions.”[12] This ‘black hole’ has not shrunk nor has it been addressed by the international community in any way. However, as the Paris attacks have demonstrated, international leaders are not deviating from the new paradigm in which ‘war’ can be declared on non-state actors. Does the changing nature of warfare justify and merit adjusting international law? This new paradigm has not undergone consideration by the international community as a whole and may do more harm than good for the future of international law. While an international law system that is flexible will allow states to respond to a transformative enemy, we must not allow jus cogens norms to change. The international community must not abide the unilateral abandonment of its peremptory norms, such as dismissing the Geneva Conventions as obsolete.[13] International law is indeed not separate from politics and thus it has to be responsive to geopolitical shifts, but that does not mean that its very foundations may be subject to radical revision without a consensual process or on the whim of one, or two, nations.

[1] Death Toll From Paris Attacks Rises to 130, Radio Free Europe (Nov. 22, 2015), http://www.rferl.org/content/paris-attacks-death-toll-rises/27377691.html. [2] Attaques à Paris: la France «sera impitoyable» contre l’EI, dit Hollande, le Monde (Nov. 14, 2015), http://www.lemonde.fr/societe/article/2015/11/14/attaques-a-paris-francois-hollande-evoque-un-acte-de-guerre-commis-par-une-armee-terroriste_4809867_3224.html. [3] Paris attacks: Hollande blames Islamic State for ‘act of war’, BBC (Nov. 14, 2015), http://www.bbc.com/news/world-europe-34820016. [4] Christopher Greenwood, International law and the ‘war against terrorism’, 78 International Affairs 301, 301 (2002). [5] Id. at 306. [6] Noah Feldman, ‘Act of war’ is good rhetoric, bad terror policy, The Chicago Tribune (Nov. 15, 2015), http://www.chicagotribune.com/news/sns-wp-blm-paris-war-comment-847fe8bc-8bc5-11e5-934c-a369c80822c2-20151115-story.html. [7] Paul Farrell, Isis attack on Paris may be an ‘act of war’ but retaliation may not be lawful, The Guardian (Nov. 16, 2015), http://www.theguardian.com/world/2015/nov/16/isis-attack-on-paris-may-be-an-act-of-war-but-retaliation-might-not-be-lawful. [8] Feldman, supra note 6. [9] Jason Ralph, America’s War on Terror: The State of the 9/11 Exception from Bush to Obama (2013). [10] Id. [11] Stephen Marks, International Law and the ‘War on Terrorism’: Post 9/11 Responses by the United States and Asia Pacific Countries, 14 Asia Pacific Law Review 43 (2006). [12] Excerpts From Gonzales’s Legal Writings, The New York Times (Nov. 11, 2004), http://www.nytimes.com/2004/11/11/politics/excerpts-from-gonzaless-legal-writings.html?_r=0. [13] Marks, supra note 11 at 74.