Challenges posed by the new terrorism and the changing nature of war.

• Author: Murphy, John F.
• Position: International Law in Crisis

The theme of this conference is "International Law in Crisis." Two prime examples of the challenges facing international law and international institutions are the so-called "new terrorism" and the changing nature of war. In contrast to the "old terrorism" the new terrorism, which is religiously inspired, is increasingly willing to kill large numbers of people and to make no distinctions between military and civilian targets. Moreover, as demonstrated most vividly by al-Qaeda, which is reported to operate in a network that spans roughly one hundred countries, the new terrorism has become a global threat rather than a threat located primarily in one country.

Prior to the horrific attacks of September 11, 2001, international terrorism had been treated primarily as a criminal law matter with emphasis placed on preventing the commission of the crime through intelligence or law enforcement means, or, if prevention failed, on the apprehension, prosecution and punishment of the perpetrators. After September 11th, however, the criminal justice approach was de-emphasized and, to a considerable extent, supplanted by the use of military means.

This shift to the military model of counter-terrorism has engendered considerable controversy. Supporters of the military model contend that criminal law is "too weak a weapon" and that it was inadequate to stop al-Qaeda from planning and carrying out the attacks of September 11th. Critics argue that it is unnecessary and threatens fundamental human rights. They suggest that normal law enforcement measures can effectively combat the threat of terrorism. Moreover, a decision to employ the military model of counter-terrorism in place of the law enforcement model, or vice-versa, may have serious functional consequences, which are considered in this article.

Use of the U.S. military to kill Osama bin Laden on May 2, 2011, in his heavily fortified Abbottabad compound in Pakistan was sharply criticized by various sources and outraged the Pakistani government and many of its people. It was equally strongly defended by the U.S. government, especially by the Legal Adviser to the U.S. Department of State, Harold Koh, who assessed the killing under the law of armed conflict and not under international human rights law.

As to the changing nature of war and its impact, World War II is a classic example of an international armed conflict between sovereign states, and the United Nations was set up primarily to prevent such a conflict in the future. But international armed conflicts currently constitute a small minority of all conflicts, and have been replaced by internal or non-international armed conflicts in the form of insurgencies, civil wars and terrorist attacks. These non-international armed conflicts are also examples of asymmetric warfare, which features armed hostilities in which one party to the conflict endeavors to compensate for its military or other deficiencies by resorting to the use of means of warfare that clearly violate the law of armed conflict or other rules of public international law. Examples of such means of warfare include the deliberate targeting of civilians, the slaughter of hostages, the embedding of fighters in the civilian population, and the use of human shields, especially civilians. What is particularly disturbing about asymmetric warfare is that violators of the law of armed conflict gain considerable military advantage in many instances by the adoption of such tactics because they can be extremely effective in countering the normally vastly superior capabilities of the other party, including in particular those of the United States.

1. INTRODUCTION II. THE "NEW TERRORISM" AND ITS IMPACT A. The "New Terrorism" B. Impact of the New Terrorism C. The Legality of the Killing of Osama bin Laden III. THE CHANGING NATURE OF WAR AND ITS IMPACT A. The Responsibility to Protect (R2P) B. The Arab Spring C. The Ivory Coast and R2P IV. CONCLUSION I. INTRODUCTION

   In this essay, my focus is on two developments which have raised especially difficult challenges for the maintenance of international peace and security and the law of armed conflict. These are the evolution of international terrorism over a number of years to the point where one can speak confidently of a "new terrorism" and the closely related phenomenon of the changing nature of war. In combination, I believe, these two developments have created grave difficulties for the international community in general and for the U.S. in particular. Failure to resolve these difficulties could cause the international legal system to become increasingly dysfunctional with respect to efforts to maintain international peace and security and to develop the law of armed conflict and raise real and growing doubts about its relevance to the conduct of international relations.

2. THE "NEW TERRORISM" AND ITS IMPACT

   Although now dated, the trenchant observation of the late Richard Baxter, Professor of Law at Harvard University and Judge on the International Court of Justice, published in 1974, has stood the test of time: "We have cause to regret that a legal concept of 'terrorism' was ever inflicted upon us. The term is imprecise; it is ambiguous; and above all, it serves no operative legal purpose." (1) But above all, the hard school of experience has shown, it has constituted, and continues to constitute, a major barrier to efforts to combat the criminal acts often loosely described as "terrorism."

   In practice, politicians and diplomats have used the terms "terrorism" and "terrorists" as labels to pin on their enemies. The cliche: "One man's terrorist is another man's freedom fighter" is a notorious reflection of this game of semantics. (2) It also reflects a serious conflict of values between those who believe that the end always justifies the means and those who do not. Thus, in the current environment especially, there are those, apparently increasing dramatically in number, who, in an effort to reach their end or goal, are perfectly willing to engage in the deliberate targeting and massive slaughter of civilians, employ suicide bombers, use children as shields, and behead helpless hostages before a worldwide audience. This clash of fundamental values has been a major factor contributing to the international community's failure to define terrorism as a legal concept. The U.N. and other international fora remain unable to set forth comprehensive antiterrorism resolutions because they have not defined the term. (3)

   Some countries believe that terrorists' political motivations are relevant to this definitional problem. (4) For example, the position of some governments has been, "that individual acts of violence can be defined as terrorism only if they are employed solely for personal gain or caprice; acts committed in connection with a political cause, especially against colonialism and for national liberation, fall outside the definition and constitute legitimate measures of self-defense." (5) Another method to defining terrorism has been to define it as such only when such terror is used by governments, or so-called "state terrorism."6

   To be sure, attempting to define terrorism has been a favorite activity of academic scholars, (7) but their efforts have not led to success at the international level. (8) In his treatise, Wayne McCormack examines a "welter of definitions" and based on this examination, suggests some common features found in most of them. Applying these common features, McCormack posits that, "Generally, a terrorist: (1) is a civilian or subnational group who; (2) uses violence; (3) against civilians; (4) for political motivations." (9)

   Despite, or perhaps because of, the international community's inability to agree on a definition of terrorism, and despite the many practical problems definitions of terrorism pose, national legal systems, including that of the U.S., have adopted a number of definitions for a variety of purposes. (10) For present purposes, one might consider the definition of "international terrorism" that appears in the U.S. federal crime code's chapter on terrorism. (11) According to this definition,

   "International terrorism" means activities that--

   (A) involve violent acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a violation if committed within the jurisdiction of the United States or of any State;

   (B) appear to be intended--

   (i) to intimidate or coerce a civilian population;

   (ii) to influence the policy of a government by intimidation or coercion; or

   (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

   (C) occur primarily outside the territorial jurisdiction of the United States or national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum. (12)

   With this brief background to some of the definitional problems of terrorism, let us consider some of the salient aspects of the "new terrorism."

   1. The "New Terrorism"

      Back in the (relatively) halcyon days of the "old terrorism," the conventional wisdom suggested that terrorists had little interest in killing large numbers of people. The perception was that large-scale killings would undermine their efforts to gain sympathy for their cause, which was usually to overthrow the government of a particular country (e.g., Germany or Italy). (13) An especially disquieting aspect of the new terrorism is the increased willingness of terrorists to kill large numbers of people and to make no distinction between military and civilian targets. (14) A major cause of this radical change in attitude has been aptly pinpointed by Jeffrey D. Simon:

      Al Qaeda ... is representative of the emergence of the religious-inspired terrorist groups that have become the predominant form of terrorism in recent...