9 The Response to 9/11

T
HIS CHAPTER EXAMINES WHETHER THE SYSTEMATIC AL
Qaeda terrorist attacks against the World Trade Center
and Pentagon on September 11, 2001, and the international
community’s political and tactical reactions to those attacks have gener-
ated a Grotian Moment, leading to new rules of customary international
law concerning use of force against nonstate actors. The International
Court of Justice had previously opined in the 1986 Nicaragua case that
victim states could not resort to force in response to attacks by non-
state actors unless those actors were effectively controlled by the territo-
rial state.1 A few days after the September 11 attacks, however, the UN
Security Council adopted Resolution 1368, which was widely viewed
as coni rming the right to use force in self-defense against al Qaeda in
Afghanistan, and there was little international protest when the United
States invaded Afghanistan shortly thereafter. With the subsequent
deployment of unmanned drones to hunt down al Qaeda terrorists in
Afghanistan, Pakistan, Yemen, and Somalia, the response to 9/11 is not
just about the radical change in the terrorist threat but also in the tech-
nology used to combat them. Invoking the term “constitutional moment”
to describe these developments, Professor Ian Johnstone of the Fletcher
School of Law and Diplomacy concludes that “in contrast to where the

1
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States) (merits), para. 195, 1986 I.C.J. 14, 103–104 (June 26).

183

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 184 RECOGNIZING GROTIAN MOMENTS

law stood in 1986 . . . it is a fair inference today that self-defense may be

invoked against non-state actors.”2 This chapter examines the validity of
Professor Johnstone’s supposition.

Use of Force against Nonstate Actors prior to 9/11

The inherent right to use force in self-defense under international law

is codiied in Article 51 of the UN Charter. The charter contains an
important limit to that right, permitting use of force in self-defense only
“if an armed attack occurs.”3 The UN Charter does not dei ne “armed
attack,” but the International Court of Justice in the Nicaragua case held
that only the “most grave forms of the use of force” constitute an armed
attack.4 According to the ICJ, to qualify as an armed attack triggering
the right of self-defense, the assault must reach a certain signiicant scale
of violence above “mere frontier incidents.”5 However, the ICJ has also
suggested that a string of small-scale attacks can in aggregate constitute
an armed attack.6 Assuming that the attack threshold is reached either
by a particularly severe terrorist attack or by a series of attacks, two
questions arise: i rst, whether the armed attack must be attributable to
the state against whom the force will be used; and second, whether tar-
geting terrorists before they launch a new attack is lawful.

2
Ian Johnstone, The Plea of “Necessity” in International Legal Discourse:
Humanitarian Intervention and Counter-terrorism, 43 Columbia Journal of
Transnational Law 337, 370 (2005).
3
UN Charter, Art. 51.
4
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States) (merits), para. 195, 1986 ICJ 14, 103–4 (June 26).
5
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States) (merits), para. 195, 1986 ICJ 14, 93 (June 26).
6
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States) (merits), paras. 119–20, 1986 ICJ 14, 93 (June 26); Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda) 2005 ICJ 168
(December 19) (“even if this series of deplorable attacks could be regarded as cumu-
lative in character, they still remained non-attributable to the DRC”).

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 THE RESPONSE TO 9/11 185

State Attribution

The International Court of Justice has repeatedly held that unless the
acts of nonstate actors are attributable to the territorial state, use of
force against nonstate actors in that state is unlawful. This is because
when a rebel group or terrorist organization is physically located within
the territory of another state that is not in effective control of its opera-
tions, the right of self-defense collides with two other fundamental
principles of international law, the sovereign equality of states and the
renunciation of force in international relations.7 The rationale behind
the attribution requirement is that a state cannot be held responsible
for the acts of all whose activities originate in its territory. “If it were
otherwise, Colombia, for example, might be liable for the acts of inter-
national drug trafickers working from Colombia, or Russia might be
held responsible for the international activities of the Russian Maia.”8
Thus, under the ICJ’s holdings in Nicaragua,9 Oil Platforms,10 the Wall
advisory opinion,11 and the Congo case,12 to use force against a terror-
ist organization whose conduct is not imputable to the territorial state
would itself constitute an unlawful armed attack, warranting justiied
use of force in response by the territorial state.
Under the International Court of Justice’s jurisprudence, attribu-
tion requires that the territorial state have “effective control” of the
nonstate actors. This standard originated in the Nicaragua case, where
the Court was presented with the question of whether the actions of

7
UN Charter, Arts. 2(1) and 2(4).
8
Greg Travalio and John Altenburg, Terrorism, State Responsibility, and the Use of
Military Force, 4 Chicago Journal of International Law 97 (2003).
9
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States) (merits), para. 195, 1986 ICJ 14, 195 (June 26).
10
Oil Platforms (Iran v. United States) 2003 ICJ 161, 195 (November 6).
11
The Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
2003 ICJ 136, 139 (July 9).
12
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo
v. Uganda) 2005 ICJ 168 (December 19).

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 186 RECOGNIZING GROTIAN MOMENTS

Nicaragua in supporting rebels in El Salvador through the provision of

weapons was suficient to justify military action by the United States in
collective self-defense with El Salvador. The Court stated that sending
“armed bands” into the territory of another state would be suficient
to constitute an armed attack, but “the supply of arms and other sup-
port to such bands cannot be equated with an armed attack.”13 In the
same case, the ICJ found that the acts of the U.S.-assisted Nicaraguan
rebel group called the “Contras” could not be attributed to the United
States because there was no clear evidence that the United States had
“exercised such a degree of control in all ields as to justify treating the
Contras as acting on its behalf.”14 It is important to note here that the
Nicaragua attribution requirement was not designed to answer the ques-
tion of whether an attack by an independent nonstate actor could trig-
ger the right of self-defense against that nonstate actor, but rather the
question of whether an attack by the nonstate actor could be considered
an armed attack by the state that sent the armed groups and therefore
justify force in self-defense against that state.

Anticipatory Self-Defense under Customary International Law

Anticipatory self-defense is the use of force to stop an attack that has

not actually commenced but is reasonably believed to be imminent. The
concept recognizes that “no State can be expected to await an initial
attack which, in the present state of armaments, may well destroy the
State’s capacity for further resistance and so jeopardize its very exis-
tence.”15 Anticipatory self-defense has its modern customary interna-
tional law origins in the Caroline incident.

13
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States) (merits), paras. 119–20, 1986 ICJ 14, 126–7 (June 26).
14
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States) (merits), paras. 119–20, 1986 ICJ 14, 62 (June 26).
15
D. W. Bowett, Self-Defense in International Law 191 (1958).

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 THE RESPONSE TO 9/11 187

During the Caroline incident of 1837, Canada (then part of the United
Kingdom) faced an armed insurrection mounted from U.S. territory led
by nonstate actors. The United Kingdom responded to the armed insur-
rection by attacking the insurgent’s supply ship, the Caroline, while it
was docked on the U.S. side of the Niagara River. In an exchange of
diplomatic notes between the United States secretary of state, Daniel
Webster, and the British foreign minister, Lord Ashburton, the two
sides agreed that a state would be justiied in using force against non-
state actors in another state where the “necessity for self defense” was
“instant, overwhelming, leaving no choice of means, and no moment
for deliberation.”16 While courts and commentators often substitute the
term “imminent” for the longer formulation, the Caroline dei nition is
widely recognized as relecting customary international law. Some states
and commentators, however, have argued that anticipatory self-defense
is not lawful under the UN Charter.
Three separate incidents involving attacks by Israel, purportedly in
anticipatory self-defense, illuminate the contours of customary interna-
tional law related to anticipatory self-defense prior to September 11.17 The
i rst was the Israeli attack that kicked off the June 1967 (Six Day) War.
Although Israel was the i rst to strike, a number of factors taken together
convinced most of the international community that an armed attack on
Israel was imminent, and therefore that its anticipatory actions were law-
ful in self-defense. Those factors included the peremptory expulsion of
the UN peacekeeping force from the Sinai; the unprecedented massing
of Egyptian forces along the Israeli border; the closure of the Straits of
Tiran, effectively blockading Israel’s only southern access to the high

16
Letter from Daniel Webster, U.S. Secretary of State, to Mr. Fox (April 24, 1841),
reprinted in 29 British and Foreign State Papers 1129, 1138 (James Rigway & Sons
1857).
17
Several other countries, including the United States, invoked self-defense to justify
military operations during the decades leading up to the 9/11 attacks, but these three
incidents provide a particularly useful basis for discussion of the state of the law prior
to 2001.

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 188 RECOGNIZING GROTIAN MOMENTS

seas; the bellicose statements of the Egyptian president; and the sudden
alliances of Jordanian and Iraqi forces under Egyptian control.18 In the
aftermath of the Israeli anticipatory attack, draft resolutions condemn-
ing Israel in the Security Council and General Assembly were defeated
by wide margins,19 and the contention that Israel’s actions were lawful
under the circumstances was not widely challenged at the time. 20
The second incident occurred in June 1981, when Israel launched air
strikes against the Iraqi Osiraq nuclear installation a few days before it
was to become operational. Despite Israel’s claim that the attack was
a justiiable act of anticipatory self-defense because the reactor would
provide Iraq the ability to develop nuclear weapons that would be used
against Israel, the UN Security Council unanimously adopted a resolu-
tion strongly condemning the Israeli action as a “clear violation of the
Charter of the United Nations and the norms of international conduct”
and calling on Israel to refrain from launching similar attacks against
Iraq’s nuclear facilities in the future.21 The UN General Assembly fol-
lowed the Security Council a few months later by voting 109 to 2 for
adoption of Resolution 36/27, which condemned Israel for the “premedi-
tated and unprecedented act of aggression,” and demanded that Israel
pay prompt and adequate compensation for the damage and loss of life
it had caused. 22 The international condemnation was led by France,
which stated that the reactor it had provided to Iraq was solely for sci-
entiic research. The UK likewise stated that the Osiraq reactor was not
capable of producing weapons-grade material, while the International
Atomic Energy Agency coni rmed that inspections had revealed no

18
See Michael Walzer, Just and Unjust Wars 82–3 (Basic Books, 1977).
19
UN SCOR, 22nd Sess., 135th mtg., at 5, UN GAOR, 5th Emergency Special Session,
154th mtg., at 15–17.
20
Ohio State University Law Professor John Quigley has written a new book compre-
hensively challenging the factual predicate for Israel’s anticipatory attack. See John
Quigley, The Six Day War and Israeli Self-Defense (Cambridge University
Press, 2012).
21
UNSC Res. 487, 36 UN SCOR, 2288th mtg., UN Doc. S/RES/487 (1981).
22
UN G.A. Res. 36/27 (XXXVI), UN Doc.A/RES/36/27 (1981).

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 THE RESPONSE TO 9/11 189

noncompliance with the safeguards agreement.23 The problem, there-

fore, with Israel’s invocation of anticipatory self-defense in this case
was that Israel could not convince the international community that an
attack was imminent.
The third incident occurred in October 1985, when Israel launched air
strikes against the headquarters of the Palestine Liberation Organization
(PLO) in Tunisia in response to a series of PLO terrorist attacks against
Israeli citizens. In arguing that it had acted lawfully, Israel told the
Security Council, “it cannot be overlooked or overstated, that the PLO
has in Tunisia an extraterritorial base from which they conduct their ter-
rorist operations. We have struck only at this base and at no other facil-
ity, buildings or area. But apart from this, a country cannot claim the
protection of sovereignty when it knowingly offers a piece of its territory
for terrorist activity against other nations, and that is precisely what hap-
pened here.”24 Despite evidence of the PLO’s continuing threat to Israel,
the Security Council condemned the Israeli action by a vote of 14–0,
with the United States abstaining. 25 Relecting the sentiment of several
delegations, the East German Delegation stressed that Israel’s attack
was not simply against the PLO but “also against the sovereignty and
territorial integrity of an Arab State, the Republic of Tunisia,” which
was not involved in the attacks. 26 Consistent with the Nicaragua case, the
international response to the Israeli 1985 air strike in Tunisia afirmed
that, absent state attribution for terrorist acts, use of force could not be
lawfully employed against a state that harbors a terrorist group.

23
Shai Feldman, Nuclear Weapons and Arms Control in the Middle East
110 (MIT Press, 1996).
24
Provisional Verbatim Record of the 2615th Meeting of the Security Council, UN
Doc. S/PV. 2615 (October 4, 1985), available at: http://unispal.un.org/UNISPAL.NS
F/0/1BD0C735449FE9980525658B005E624E.
25
S.C. Res. 573 (1985), October 4, 1985.
26
Provisional Verbatim Record of the 2615th Meeting of the Security Council, UN
Doc. S/PV. 2615 (October 4, 1985), available at: http://unispal.un.org/UNISPAL.NS
F/0/1BD0C735449FE9980525658B005E624E.

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 190 RECOGNIZING GROTIAN MOMENTS

Did 9/11 Alter the Paradigm?

When the rules governing use of force in self-defense were promulgated,

most international conl icts were conducted by states utilizing large
movements of military personnel and munitions. 27 In the past, nonstate
actors (pirates, guerrillas, drug trafickers, and terrorists) appeared less
threatening to state security than the well-funded, well-organized, and
potent armed forces of an enemy state. To the extent that terrorists were
a concern, it was because they were i nanced by state supporters, such as
Iraq, Syria, Libya, Iran, Cuba, and North Korea. 28 The terrorist attacks
of September 11, 2001, changed that perception by starkly illustrating
that small groups of nonstate actors, acting from failed States without
direct government support, can exploit relatively inexpensive and com-
mercially available technology to conduct very destructive attacks over
great distance.29

A Different Kind of Threat

In August 1996, Osama bin Laden, the multimillionaire leader of a

then-little-known group called al Qaeda, issued a statement entitled

27
At the time of the adoption of the UN Charter, there had been only a handful of
instances in which states pursued ongoing military operations against nonstate actors
in the territory of other states. A survey of such actions would include the American
military expedition into Mexico in 1916, which was provoked by attacks on American
territory by the armed bands of Francisco (Poncho) Villa; the American military
attack on pirates using Spanish-held Amelia Island off the Florida coast as a base of
operations in 1817; and the 1838 Caroline incident, in which Britain attacked a steamer
in order to prevent an attack by nonstate actors on Canada. See Roy S. Schondorf,
Extra-State Armed Conl icts: Is There a Need for a New Legal Regime? 37 New
York University Journal of International Law & Policy 1, 2 n.6 (2004).
28
See list of state supporters of terrorism, maintained by the U.S. Department of
State, available at: http://www.state.gov/j/ct/list/c14151.htm (last accessed February
9, 2013).
29
Olumide K. Obayemi, Legal Standards Governing Pre-Emptive Strikes and
Forcible Measures of Anticipatory Self-Defense under the U.N. Charter and General
International Law, 12 Annual Survey of International & Comparative Law
19, 23–4 (2006).

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 THE RESPONSE TO 9/11 191

“Ladenese Epistle: Declaration of War,” in which he called for all

Muslims to make holy war (jihad) against American forces in Saudi
Arabia, and speciically advocated the use of terrorism with the goal of
“great losses induced on the enemy side (that would shake and destroy
its foundations and infrastructures).”30 In February 1998, bin Laden fol-
lowed the Declaration of War by issuing a religious edict (fatwa) to all
Muslims, declaring that “to kill the Americans and their allies – civil-
ians and military – is an individual duty for every Muslim who can do it
in any country in which it is possible to do it.”31 The fatwa further called
on “every Muslim who believes in God and wishes to be rewarded to
comply with God’s order to kill the Americans and plunder their money
wherever and whenever they i nd it.”32
Subsequent events proved that bin Laden’s al Qaeda was not a mere
group of “crackpots,” making grandiose proclamations of war, but a
well-funded, well-organized, and deadly new terrorist organization
with franchise cells across the globe. 33 The targets of al Qaeda attacks
have included the U.S. embassies in Kenya and Tanzania in 1998, the
U.S.S. Cole in Yemen in 2000, and the simultaneous attack on the World
Trade Center and Pentagon on September 11, 2001. 34 The death toll
from September 11 was more than three thousand, which is higher than
that of the American casualties in the War of 1812, the U.S.-Mexican

30
Osama bin Laden, Ladenese Epistle: Declaration of War (August 24, 1996),
quoted in Davis Brown, Use of Force against Terrorism after September 11th: State
Responsibility, Self-Defense and Other Responses, 11 Cardozo Journal of
International & Comparative Law 1, 25 (2003).
31
Osama bin Laden et al., Jihad against Jews and Crusaders: World Islamic Front
Statement (February 23, 1998), quoted in Davis Brown, Use of Force against Terrorism
after September 11th: State Responsibility, Self-Defense and Other Responses, 11
Cardozo Journal of International & Comparative Law 1, 26 (2003).
32
Id.
33
Joshua Bennett, Exploring the Legal and Moral Bases for Conducting Targeted
Strikes outside of the Dei ned Combat Zone, 26 Notre Dame Journal of Law,
Ethics Public Policy 549, 551 (2012).
34
Davis Brown, Use of Force against Terrorism after September 11th: State Responsibility,
Self-Defense and Other Responses, 11 Cardozo Journal of International &
Comparative Law 1, 26–7 (2003).

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 192 RECOGNIZING GROTIAN MOMENTS

War, or the Japanese attack on Pearl Harbor in 1941. 35 In addition to the

loss of life, the damage to the American economy has been appraised
at more than $650 billion. 36 Al Qaeda attacks since 9/11 have included
the November 2003 truck bombings in Istanbul, which injured 700 and
killed 74 people; the March 2004 train bombings in Madrid, which
injured 1,800 and killed 191 people; and the July 2005 train and bus
bombings in London, which injured 700 and killed 56 people. 37
The 9/11 attacks forced states to reevaluate the long-standing notion
that only a state has the capacity to commit an armed attack against
another state giving rise to the right to respond with force in self-defense.
Post 9/11, terrorist threats issue from stateless entities that possess many
of the attributes of a state – wealth, willing forces, training, organization,
and potential access to weapons of mass destruction. If such a nonstate
actor commits a series of attacks against a state, and the acts are of sufi-
cient scale and effect to amount to an armed attack, then arguably force
in self-defense should be permitted against the nonstate actor that pres-
ents a continuing threat where the host state has manifested an inability
or unwillingness to respond effectively to the threat.

The International Response to 9/11

The day after the 9/11 attack, the United States informed the UN
Security Council that it had been the victim of an armed attack and
declared its intent to respond under Article 51 of the UN Charter. 38 The

35
Davis Brown, Use of Force against Terrorism after September 11th: State Responsibility,
Self-Defense and Other Responses, 11 Cardozo Journal of International &
Comparative Law 1, 27 (2003).
36
Norman G. Printer, Jr., The Use of Force against Non-State Actors under International
Law: An Analysis of the U.S. Predator Strike in Yemen, 8 University of California
Los Angeles Journal of International Law & Foreign Affairs 331, 353
(2003).
37
Paul Carlsten, Al Qaeda Attacks in Europe since September 11, The Telegraph ,
March 21, 2012.
38
Statement of Ambassador James B. Cunningham, U.S. Deputy Representative to the
United Nations, Transcript of the 4370th meeting of the Security Council, at 3, U.N.
Doc. S/PV.4370 (September 12, 2001).

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 THE RESPONSE TO 9/11 193

North Atlantic Treaty Organization (NATO) for the i rst time in its
history invoked Article 5 of the North Atlantic Treaty, which treats an
armed attack on one member as an armed attack on all of them. 39 The
Organization of American States (OAS) took a similar stance in OAS
Resolution 797. Invoking the 1947 Inter-American Treaty of Reciprocal
Assistance, which provides that in the event of an armed attack on an
American state the parties agree that “each one of [them] undertakes to
assist in meeting the attack in the exercise of the inherent right of individ-
ual or collective self-defense,”40 the OAS called upon “the government of
the member States and all other governments to use all necessary means
at their disposal to pursue, capture, and punish those responsible for
the attacks, and to prevent additional attacks.”41 Meanwhile the United
States and Australia jointly invoked the collective defense article of the
ANZUS Treaty, which provides for the parties collectively to “resist
armed attack” and “act to meet the common danger.”42 In addition, the
Japanese government took the position that the September 11 attack was
an attack on the United States and soon thereafter enacted legislation
to enable Japan to deploy its forces in support of U.S. operations against
al Qaeda.43
Consistent with these developments, the Security Council adopted
Resolution 1368, which condemned the 9/11 attacks and “recognized the

39
NATO Press Release 124, September 12, 2001, cited in Davis Brown, Use of Force
against Terrorism after September 11th: State Responsibility, Self-Defense and Other
Responses, 11 Cardozo Journal of International & Comparative Law 1, 28
(2003).
40
Inter-American Treaty for Reciprocal Assistance, Sept. 2, 1947, 21 U.N.T.S. 77.
41
OEA/SER.G CP/RES. 797 (1293/01, Sept. 19, 2001).
42
Security Treaty between Australia, New Zealand and the United States of America,
Arts. II and IV, Sept. 1, 1951, 131 U.N.T.S. 83, 86.
43
Davis Brown, Use of Force against Terrorism after September 11th: State
Responsibility, Self-Defense and Other Responses, 11 Cardozo Journal of
International & Comparative Law 1, 29 (2003) (citing Government of Japan,
Ministerial Meeting Concerning Measures against Terrorism and Press Conference
of the Prime Minister, Wednesday, September 19, 2001; Government of Japan, Basic
Plan Regarding Response Measures Based on the Anti-Terrorism Special Measures
Law, Cabinet Decision of Nov. 16, 2001).

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 194 RECOGNIZING GROTIAN MOMENTS

inherent right of individual or collective self-defense in accordance with

the Charter.”44 This action was not a Chapter VII authorization to use
force, but rather a coni rmation that the United States could invoke its
right to respond with force under Article 51 of the UN Charter, despite
the fact that al Qaeda was a nonstate actor. Consistent with that right,
on October 7, 2001, the United States informed the council that it had
launched Operation Enduring Freedom.45 Air strikes were directed at
camps allegedly belonging to al Qaeda and other Taliban military tar-
gets throughout Afghanistan. There was no international protest or con-
demnation of these actions46; rather through word and actions, a long list
of states expressed support for the operation.47
Had al Qaeda been a state, its attacks (both in the aggregate and
some of the most spectacular individual attacks) would have passed the
“scale and effect” test of the Nicaragua case. But as al Qaeda was a non-
state actor based in Afghanistan, under the Nicaragua precedent, use
of force against al Qaeda in Afghanistan would only be permissible if
Afghanistan had “effective control” of the terrorist organization.
Some commentators argue that Afghanistan met the Nicaragua test
of effective control because Afghanistan’s Taliban regime and al Qaeda
were in effect partners. Yet, the facts do not establish that al Qaeda acted
as an agent or instrumentality of the Afghan state, but rather that al
Qaeda pursued an independent agenda and acted autonomously within

44
S.C. Res. 1368 (2001), 3rd preambular paragraph.
45
Letter, dated October 7, 2001, from the Permanent Representative of the United
States of America, to the United Nations addressed to the President of the Security
Council, UN SCOR, 56th session at 1, UN Doc. S?2001/946 (2001).
46
Rebecca Kahan, Building a Protective Wall around Terrorists – How the International
Court of Justice’s Ruling in the Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory Made the World Safer for Terrorists and More
Dangerous for Member States of the United Nations, 28 Fordham International
Law Journal 827, 842–3 (2005).
47
Benjamin Langille, It’s Instant Custom: How the Bush Doctrine Became Law after
the Terrorist Attacks of September 11, 2001, 26 Boston College International &
Comparative Law Review 145, 146, 155 (2003).

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 THE RESPONSE TO 9/11 195

Afghanistan.48 Neither did the Taliban government of Afghanistan

endorse the September 11 attack. Rather, Taliban oficials denied that
bin Laden had anything to do with the attack, asserting that “bin Laden
lacked the capability to pull off large-scale attacks” and proclaiming
their conidence that a U.S. investigation would ind him innocent.49
On the other hand, the Taliban government knowingly harbored
al Qaeda, providing its members a place of refuge and allowing the
organization to use Afghanistan as a base from which to plan, spon-
sor, and launch international terrorist operations. The Taliban govern-
ment repeatedly ignored the Security Council’s demands to close down
the terrorist training facilities in Afghanistan and extradite bin Laden,
thereby enabling al Qaeda to represent a continuing threat to the United
States.

The Bush Doctrine: Attacks against States Harboring Terrorist Groups

A week after the terrorist attacks of 9/11, the United States announced
the “Bush Doctrine” when President George Bush declared: “Our war
on terror begins with al-Qaeda, but it does not end there. It will not
end until every terrorist group of global reach has been found, stopped
and defeated. Either you are with us or you are with the terrorists.”50
The most important aspect of the doctrine was encapsulated in Bush’s
statement that “we will make no distinction between the terrorists who

48
Alex Strick van Linschoton and Felix Kuehn, An Enemy We Created: The
Myth of the Taliban –Al Qaeda Merger in Afghanistan 1990 – 2010 (C. Hurst
& Co., 2012).
49
Facts On File World News Digest, September 11, 2001, at 697A1, quoted in Davis
Brown, Use of Force against Terrorism after September 11th: State Responsibility,
Self-Defense and Other Responses, 11 Cardozo Journal of International &
Comparative Law 1, 11 (2003).
50
See President George Bush’s seminal speech on September 20, 2001, to the joint ses-
sion of Congress, quoted in Olumide K. Obayemi, Legal Standards Governing Pre-
Emptive Strikes and Forcible Measures of Anticipatory Self-Defense under the U.N.
Charter and General International Law, 12 Annual Survey of International &
Comparative Law 19 (2006).

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 196 RECOGNIZING GROTIAN MOMENTS

committed these acts and those who harbor them.”51 In a speech before
a joint session of Congress on September 20, 2001, President Bush said,
“from this day forward, any nation that continues to harbor or support
terrorism will be regarded by the United States as a hostile regime.”52
In the words of White House spokesman Ari Fleisher, the Bush
Doctrine represented “a dramatic change in American policy.”53 Yet, in
a ive-day debate in the United Nations General Assembly, where state
after state condemned the 9/11 attacks, not one objection was voiced to
the newly announced U.S. policy. 54
Although it represented a clear departure from the Nicaragua case,
the Bush Doctrine was rooted in historic provenance. The general afi r-
mative obligation that every state not knowingly allow “its territory to be
used for acts contrary to the rights of other States” was i rst articulated
by the International Court of Justice in the 1949 Corfu Channel case.
There, the ICJ held Albania liable for damage to British warships that
struck mines in Albanian territorial waters. 55 Although Great Britain
could not prove that Albania had laid the mines or had engaged another
state to do so, the ICJ found that Albania must have known of the exis-
tence of the mines because Albania was known to have jealously guarded
its side of the Corfu Strait, and this was enough to establish Albania’s
liability.

51
George W. Bush, Address to the Nation on the Terrorist Attacks, September 11,
2001, quoted in Davis Brown, Use of Force against Terrorism after September 11th:
State Responsibility, Self-Defense and Other Responses, 11 Cardozo Journal of
International & Comparative Law 1, 17 (2003).
52
Address to a Joint Session of Congress and the American People, September 20,
2001, quoted in Greg Travalio and John Altenburg, Terrorism, State Responsibility,
and the Use of Military Force, 4 Chicago Journal of International Law 98 , 108
(2003).
53
Statement of Ari Fleisher, September 21, 2001, quoted in Greg Travalio and John
Altenburg, Terrorism, State Responsibility, and the Use of Military Force, 4 Chicago
Journal of International Law 98 , 108 (2003).
54
Greg Travalio and John Altenburg, Terrorism, State Responsibility, and the Use of
Military Force, 4 Chicago Journal of International Law 98 , 109 (2003).
55
The Corfu Channel (merits), 1949 ICJ 4 (April 9).

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 THE RESPONSE TO 9/11 197

This principle is analogous to the rules relating to neutrality

adopted in the Hague Convention (V) some one hundred years ago. 56
According to the Hague Convention, “neutral powers” may not permit
belligerents to move troops, munitions, or supplies across their terri-
tory; nor may they allow their territory to be used to form “corps of
combatants” nor “recruiting agencies.”57 Should the neutral state prove
unwilling or unable to uphold these proscriptions, the other belligerent
state is justiied in attacking the enemy forces in the territory of the
neutral state. 58
The application of this concept to terrorism was coni rmed by Security
Council Resolution 1373, adopted shortly after September 11, 2001. 59 In
reafi rming the right of self-defense in the context of the September 11
attacks while asserting that states are prohibited from allowing their ter-
ritory from being used as a safe haven for terrorist groups, the resolution
signiies that allowing known terrorists to operate freely in their terri-
tory triggers the right to self-defense against the nonstate actors located
within the host state’s territory.
Summing up the current state of international law, UN Special
Rapporteur Philip Alston has stated: “A targeted killing conducted
by one State in the territory of a second State does not violate the
second State’s sovereignty [where] the i rst, targeting State has a right
under international law to use force in self-defense under Article 51
of the U.N. Charter, [and] the second State is unwilling or unable to
stop armed attacks against the irst State launched from its territory.”60

56
Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and
Persons in Case of War on Land, 36 Stat 2310 (1907).
57
Id. at arts.2, 4. 5.
58
Ashley S. Deeks, Unwilling or Unable: Toward a Normative Framework for
Extraterritorial Self-Defense, 52 Virginia Journal of International Law 483,
497–501 (2012).
59
S.C. Res. 1373, UN Doc. S/RES/1373 (Sept. 28, 2001).
60
Philip Alston, Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Study on Targeted Killings, para. 29, Human Rights Council, UN Doc.
a/HRC/14/24/Add.6 (May 28, 2010).

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 198 RECOGNIZING GROTIAN MOMENTS

The fact that the “unwilling or unable” test has its roots in the cus-
tomary law of neutrality anchors the test’s legitimacy as applied to
use of force in self-defense against nonstate actors present in a foreign
country.61
The extent of permissible military action used to combat terrorists
in a country unwilling or unable to control them depends on the level
of support provided by the harboring state. Consistent with the Hague
Convention (V) discussed earlier, with its precept of proportionality, “if
a State does nothing but allow terrorists to operate from its territory,
providing no meaningful support, the extent of the permissible military
force is only that which is necessary to deal with the terrorist threat itself.
Neither the military of the harboring State nor its infrastructure is a per-
missible target.”62 In such case, there is a distinction between using force
in a state versus against the state.63 A swift, high-precision strike against
terrorists or their training facilities in the territorial state (a so-called
in and out operation) represents a reasonably limited interference with
the territorial integrity or political independence of the territorial state
under these circumstances.64 The use of force against the nonstate actor
taken in self-defense is a lawful use of force, and the territorial state
cannot therefore mount a forcible resistance in the name of its own
self-defense.65 If, on the other hand, the territorial state is implicated in

61
Ashley S. Deeks, Unwilling or Unable: Toward a Normative Framework for
Extraterritorial Self-Defense, 52 Virginia Journal of International Law 483,
497 (2012).
62
Greg Travalio and John Altenburg, Terrorism, State Responsibility, and the Use of
Military Force, 4 Chicago Journal of International Law 98 , 112 (2003).
63
Noam Lubell, Extraterritorial Use of Force against Non-State Actors 36
(Oxford University Press, 2010).
64
In 1976, Israel conducted a raid on the Ugandan airport in Entebbe to rescue Israeli
hostages held by Palestinian hijackers. The hijackers were killed. At the UN Security
Council meeting, the Israeli representative argued that the operation was not against
the territorial integrity or political independence of Uganda. See Security Council
Oficial Records, 31st Year, 1939th Meeting, July 9, 1976, UN Doc. S/PV.1939 (1976).
65
Noam Lubell, Extraterritorial Use of Force against Non-State Actors 41
(Oxford University Press, 2010).

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 THE RESPONSE TO 9/11 199

the terrorist attack, than the victim state may have the right to use force
against the territorial state and its agents, in addition to using it against
the nonstate actor.66

Preventive Self-Defense

A more controversial aspect of the Bush Doctrine was its assertion of an

expanded right of anticipatory self-defense against terrorist threats. In
the National Security Strategy issued in the aftermath of 9/11, President
Bush explained:

For centuries, international law recognized that nations need not

suffer an attack before they can lawfully take action to defend them-
selves against forces that present an imminent danger of attack.
Legal scholars and international jurists often conditioned the legiti-
macy of preemption on the existence of an imminent threat – most
often a visible mobilization of armies, navies, and air forces pre-
paring to attack. We must adapt the concept of imminent threat to
the capabilities and objectives of today’s adversaries. Rogue States
and terrorists do not seek to attack us using conventional means. . . .
Instead, they rely on acts of terror and, potentially, the use of weap-
ons of mass destructions – weapons that can easily be concealed,
delivered covertly and used without warning. The United States
has long maintained the option of preemptive actions to counter
a suficient threat to our national security. The greater the threat,
the greater is the risk of inaction – and the more compelling the
case for taking anticipatory action to defend ourselves, even if
the uncertainty remains as to the time and place of the enemy’s
attack. To forestall or prevent such hostile acts by our adversaries,
the United States will, if necessary, act preemptively. The United
States will not use force in all cases to preempt emerging threats,
nor should nations use preemption as a pretext for aggression. Yet
in an age where the enemies of civilization openly and actively seek

66
Noam Lubell, Extraterritorial Use of Force against Non-State Actors 40
(Oxford University Press, 2010).

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 200 RECOGNIZING GROTIAN MOMENTS

the world’s most destructive technologies, the United States cannot

remain idle while dangers gather.67

As depicted in the National Security Strategy, the Bush Doctrine did not
just advocate anticipatory self-defense – striking an enemy as it prepares
an attack – but also “preventive self-defense” – striking an enemy even
in the absence of speciic evidence of an imminent attack. To that end,
the Bush administration implemented a policy of targeted killing of key
al Qaeda igures in Afghanistan, Pakistan, Iraq, Yemen, Somalia, and
elsewhere.
This expansion of the anticipatory self-defense concept was seen as
warranted by the unique attributes of the continuing threat posed by
the al Qaeda terrorist organization.68 Al Qaeda and its afi liates are well
funded with access to deadly means, potentially including chemical, bio-
logical, and nuclear weapons. They attack without warning, target civil-
ians indiscriminately, and employ suicide missions on a regular basis.
They had committed a series of prior attacks against the United States
and publicly announced an intention to continue to attack in the future.
Arguably under these circumstances, it is reasonable to deem an attack
by such organizations as “continuing” or “always imminent” for pur-
poses of the Caroline standard.69
In implementing the Bush Doctrine, the United States began to
employ newly developed technology in the form of unmanned Predator
drones equipped with laser-guided Hellire missiles controlled by

67
National Security Council, the National Security Strategy of the United States of
America 15 (2002), available at: http://www.whitehouse.gov/nsc/nss.pdf (last accessed
February 9, 2013).
68
The National Defense Strategy of the United States of America, U.S. Department of
Defense, March 2005, p. 9.
69
Greg Travalio and John Altenburg, Terrorism, State Responsibility, and the Use
of Military Force, 4 Chicago Journal of International Law 98 , 112 (2003).
Contra Philip Alston, Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Study on Targeted Killings, para. 45, Human Rights Council, UN Doc. a/
HRC/14/24/Add.6 (May 28, 2010) (characterizing preventive self-defense as “deeply
contested and lack[ing] support under international law”).

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 THE RESPONSE TO 9/11 201

operators located thousands of miles away. Predator drones eliminate

the risk to U.S. pilots. They are capable of remaining in the air ten
times longer and cost about one-twentieth as much as combat aircraft.70
Because they are slow and vulnerable to signal jamming, the drones are
not perceived to be a serious threat to an advanced military, but they
are ideal for use against nonstate actors in failed or struggling states.71
The i rst drone strike outside Afghanistan occurred in 2002 in Yemen,
killing alleged al Qaeda leader Ali Aaed Senyan al-Harithi and four
other men.72
When it took ofice, the Obama administration embraced the Bush
Doctrine and greatly expanded the drone targeted killing program.
According to President Obama’s CIA director, Leon Panetta, because
of their precision and effectiveness, drones have become “the only
game in town in terms of confronting or trying to disrupt the al Qaeda
leadership.” 73
The Obama administration’s State Department legal adviser,
Harold Koh, delivered a major policy speech at the Annual Meeting
of the American Society of International Law on March 25, 2010, in
which he provided the legal justiication for the administration’s use
of drones to ight terrorist groups around the world. Koh began by
stressing that the attacks of 9/11 triggered the U.S. right of self-defense
against al Qaeda and other terrorist organizations. Echoing the
Bush administration’s characterization of a “global war” against al

70
Michael W. Lewis, Drones and Boundaries of the Battlei eld, 47 Texas International
Law Journal 293, 296 (2012).
71
Michael W. Lewis, Drones and Boundaries of the Battlei eld, 47 Texas International
Law Journal 293, 298 (2012).
72
Molly McNab and Megan Matthews, Clarifying the Law Relating to Unmanned
Drones and the Use of Force: The Relationships between Human Rights, Self-Defense,
Armed Conl ict, and International Humanitarian Law, 39 Denver Journal of
International Law & Policy 661, 673 (2011).
73
See Andrew C. Orr, Unmanned, Unprecedented, and Unresolved: The Status
of American Drone Strikes in Pakistan under International Law, 44 Cornell
International Law Journal 729, 735 (2011) (quoting LA Times story).

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 202 RECOGNIZING GROTIAN MOMENTS

Qaeda,74 Koh asserted “as a matter of international law, the United

States is in an armed conl ict with al-Qaeda, as well as the Taliban and
associated forces, in response to the horriic 9/11 attacks, and may use
force consistent with its inherent right to self-defense under international
law.” 75 Some commentators have argued that the armed conl ict with al
Qaeda must be limited to territory on which the threshold of violence for
an armed conl ict is currently occurring, which at the time of this writing
would consist of Afghanistan and parts of Pakistan.76 Koh’s broader for-
mulation recognizes that the limited approach would effectively create
sanctuaries for terrorist organizations in failed and weak states such as
Yemen, Somalia, Libya, and Sudan.
Next, Koh argued that the right to use force in self-defense against
al Qaeda was continuous in light of the continuous threat presented:
“As recent events have shown, al-Qaeda has not abandoned its intent
to attack the United States, and indeed continues to attack us. Thus, in
this ongoing armed conl ict, the United States has the authority under
international law, and the responsibility to its citizens, to use force,
including lethal force, to defend itself, including by targeting persons
such as high-level al-Qaeda leaders who are planning attacks.” 77 But
then Koh walked back somewhat from the conception of preventive
war enshrined in the Bush Doctrine, saying: “Of course, whether a par-
ticular individual will be targeted in a particular location will depend
upon considerations speciic to each case, including those related to the
imminence of the threat, the sovereignty of the other States involved,

74
Harold Hongju Koh, Remarks, Annual Meeting of the American Society of
International Law, March 25, 2010, available at: http://www.state.gov/s/1/releases/
remarks/139119.htm (last accessed February 9, 2013).
75
Harold Hongju Koh, Remarks, Annual Meeting of the American Society of
International Law, March 25, 2010, available at: http://www.state.gov/s/1/releases/
remarks/139119.htm (last accessed February 9, 2013).
76
Michael W. Lewis, Drones and Boundaries of the Battlei eld, 47 Texas International
Law Journal 293, 298 (2012).
77
Harold Hongju Koh, Remarks, Annual Meeting of the American Society of
International Law, March 25, 2010, available at: http://www.state.gov/s/1/releases/
remarks/139119.htm (last accessed February 9, 2013).

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 THE RESPONSE TO 9/11 203

and the willingness and ability of those States to suppress the threat the
target poses.” 78
Two years later, U.S. Attorney General Eric Holder provided further
details about the Obama administration’s criteria for authorizing a tar-
geted killing. According to Holder, authorization would require three
i ndings: “First, the U.S. government has determined, after a thorough
and careful review, that the individual poses an imminent threat of vio-
lent attack against the United States; second, capture is not feasible; and
third, the operation would be conducted in a manner consistent with
applicable law of war principles.” 79
Until now, we have been examining principles related to jus ad bel-
lum (the lawfulness of the resort to force). Attorney General Holder’s
statement reminds us that a forcible response to terrorists must also
comply with the fundamental rules of jus in bello (the lawfulness of the
means employed and target selected). In his speech before the American
Society of International Law, Harold Koh described the applicable jus
in bello principles as

i rst, the principle of distinction, which requires that attacks be lim-

ited to military objectives and that civilians or civilian objects shall
not be the object of the attack; and second, the principle of pro-
portionality, which prohibits attacks that may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian
objects, or a combination thereof, that would be excessive in relation
to the concrete and direct military advantage anticipated.80

78
Harold Hongju Koh, Remarks, Annual Meeting of the American Society of
International Law, March 25, 2010, available at: http://www.state.gov/s/1/releases/
remarks/139119.htm (last accessed February 9, 2013).
79
Contemporary Practice of the United States Relating to International law,
Attorney General Discusses Targeting of U.S. Persons, 106 American Journal of
International Law 673, 675 (2012). In February 2013, the U.S. Department of
Justice released an undated White Paper setting forth a legal framework for targeted
killings outside areas of active hostilities, available at: http://msnbcmedia.msn.com/i/
msnbc/sections/news/020413_DOJ_White_Paper.pdf.
80
Harold Hongju Koh, Remarks, Annual Meeting of the American Society of
International Law, March 25, 2010, available at: http://www.state.gov/s/1/releases/
remarks/139119.htm (last accessed February 9, 2013).

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 204 RECOGNIZING GROTIAN MOMENTS

Koh’s description assumes that the high-level members of al Qaeda

themselves are lawful targets. Since they are not part of a military, the
laws of war would treat al Qaeda members presumptively as civilians
who are immune from targeting unless they either “directly participate
in the hostilities” or take on a “continuous combat function” within
the group.81 In May 29, 2009, the International Committee of the Red
Cross published a study entitled “Interpretive Guidance on the Notion
of Direct Participation in Hostilities under International Humanitarian
Law,” whose aim was in part to dei ne when targeted killings of mem-
bers of terrorist groups would be consistent with international humani-
tarian law.82 The “Interpretive Guidance” report states that “individuals
whose continuous function involves the preparation, execution, or
command of acts or operations amounting to direct participation in
hostilities assume a continuous combat function.”83 The targeted kill-
ings to date appear to involve al Qaeda igures who would meet this
description.
Meanwhile, there has been little protest as other states have begun to
cite the U.S. response to al Qaeda to justify their own acts against ter-
rorist groups operating from neighboring states. Examples include the
following:

• The April 2002 killing by Russian armed forces of “Chechen rebel

warlord” Omar Ibn al Khattab.84

81
Michael W. Lewis, Drones and Boundaries of the Battlei eld, 47 Texas International
Law Journal 293, 298 (2012).
82
Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC “Direct
Participation in Hostilities” Interpretive Guidance, 42 New York University
Journal of International Law and Politics 641 (2010).
83
Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities
under International Humanitarian Law, 90 International Review of the Red
Cross 991, 1007 (2009).
84
Philip Alston, Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Study on Targeted Killings, para. 7, Human Rights Council, UN Doc. a/
HRC/14/24/Add.6 (May 28, 2010).

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 THE RESPONSE TO 9/11 205

• The February 2008 offensive by Turkish forces against PKK bases

in northern Iraq85
• The March 2008 air strike by Colombia against a FARC terrorist
camp just inside Ecuador’s border, killing the FARC’s second in
command, Raul Reyes86
• The December 2009 use of force by Ethiopian armed forces against
the “Islamic Courts terrorist group,” which had been conducting a
series of cross-border attacks from Somalia87
• The May 2011 mission by U.S. Navy Seals to kill Osama bin Laden
at his secret compound in northern Pakistan88
• The September 2011 Predator drone attack by the United States
that killed U.S. national Anwar al-Awlaki in Yemen89
• The October 2011 Kenyan incursion into Somalia in response to
cross-border attacks by the al Shabaab terrorist group90

85
Theresa Reinold, State Weakness, Irregular Warfare, and the Right to Self-
Defense Post-9/11, 105 American Journal of International Law 244, 269
(2011).
86
Ashley S. Deeks, Unwilling or Unable: Toward a Normative Framework for
Extraterritorial Self-Defense, 52 Virginia Journal of International Law 483,
534 (2012). Unlike the other incidents listed previously, in this case the OAS called
the Colombian incursion “a violation of the sovereignty and territorial integrity of
Ecuador” and declared that “the right of each State to protect itself . . . does not
authorize it to commit unjust acts against another State.” Theresa Reinold, State
Weakness, Irregular Warfare, and the Right to Self-Defense Post-9/11, 105 American
Journal of International Law 244, 274 (2011).
87
Awol K. Allo, Ethiopia’s Armed Intervention in Somalia: The Legality of Self-Defense
in Response to the Threat of Terrorism, 39 Denver Journal of International
Law & Policy 139 (2010).
88
Jordan J. Paust, Permissible Self-Defense Targeting and the Death of Bin Laden, 39
Denver Journal of International Law & Policy 569, 579–80 (2011).
89
Jordan J. Paust, Propriety of Self-Defense Targeting of Members of Al Qaeda and
Applicable Principles of Distinction and Proportionality, 18 International Law
Students Association Journal of International & Comparative Law 565,
574 (2012).
90
International Crisis Group, The Kenyan Military Intervention in Somalia, Africa
Report No. 184 – February 15, 2012.

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 206 RECOGNIZING GROTIAN MOMENTS

A Grotian Moment That Is Still One Case Away

Scholars have opined that “the attack of September 11th and the
American response represent a new paradigm in the international law
relating to the use of force.”91 This was manifested in the statements of
the United States, NATO, the OAS, and other states that 9/11 consti-
tuted an armed attack by al Qaeda that warranted force in self-defense;
Security Council Resolutions 1368 and 1373 coni rming the right to use
self-defense in the context of the 9/11 attacks; the international commu-
nity’s positive reaction to the U.S. invasion of Afghanistan to dismantle
al Qaeda and topple its Taliban supporters; and inally the UN special
rapporteur’s conclusion that force in self-defense could be used against
terrorist groups operating in the territory of states unwilling or unable
to control them. The reaction to 9/11 thus broke with the conception of
Article 51 as a state-centered norm.
Moreover, in the aftermath of the 9/11 attack and response, the inter-
national community embraced the concept of anticipatory self-defense in
the context of use of force against terrorists, conirming that the Caroline
doctrine survived the UN Charter’s limitations on resort to self-defense.
Thus, the UN High-Level Panel concluded in its 2004 report that “a
threatened State, according to long established international law, can
take military action as long as the threatened attack is imminent, no
other means would delect it and the action is proportionate.”92
What is more, the protracted quest of the international community to
arrive at a consensus deinition of terrorism received a substantial boost in
2011 when the Appeals Chamber of the Security Council–created Special
Tribunal for Lebanon (STL)93 concluded that “although it is held by many

91
Davis Brown, Use of Force against Terrorism after September 11th: State Responsibility,
Self-Defense and Other Responses, 11 Cardozo Journal of International &
Comparative Law 1, 2 (2003).
92
The High-Level Panel , Report of the High-Level Panel on Threats, Challenges and
Change, 188, UN Doc. a/59/565 (December 2, 2004).
93
The Special Tribunal for Lebanon (STL), established in 2007 by the United Nations
Security Council to prosecute those responsible for the 2005 bombings that killed

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 THE RESPONSE TO 9/11 207

scholars and other legal experts that no widely accepted deinition of ter-
rorism has evolved in the world society because of the marked difference
of views on some issues, closer scrutiny reveals that in fact such a deini-
tion has gradually emerged.”94 On the basis of its extensive review of state
practice and indicators of opinio juris, the Appeals Chamber declared
that the customary international law deinition of terrorism consists of

the following three key elements: (i) the perpetration of a crimi-

nal act (such as murder, kidnapping, hostage-taking, arson, and so
on), or threatening such an act; (ii) the intent to spread fear among
the population (which would generally entail the creation of public
danger) or directly or indirectly coerce a national or international
authority to take some action, or to refrain from taking it; (iii) when
the act involves a transnational element.95

The STL’s dei nition of terrorism, together with the listing of ter-
rorist groups and individuals by the Security Council’s sanctions com-
mittee,96 removed one of the greatest obstacles to use of force against
terrorists, namely, the argument that “one man’s terrorist was another
man’s freedom ighter.”
One commentator has asserted that “the Bush Doctrine, irst pro-
claimed by the U.S. in response to the terrorist attacks of September 11,

former Lebanese Prime Minister Raiq Hariri and twenty-two others, is the world’s
i rst international court with jurisdiction over the crime of terrorism. See Statute of
the Special Tribunal for Lebanon, appended to S.C. Res. 1757, UN Doc . S/RES/1757
(May 30, 2007).
94
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide,
Perpetration, Cumulative Charging, Special Tribunal for Lebanon Appeals Chamber,
Case No. STL-11–01/I (Feb. 16, 2011), paras. 83, 102, available at: http://www.stl-tsl.
org/x/i le/TheRegistry/Library/CaseFiles/chambers/20110216_STL-11–01_R176bis_
F0010_AC_Interlocutory_Decision_Filed_EN.pdf [Interlocutory Decision] (last
accessed February 9, 2013).
95
Id. at para. 85.
96
The UN Security Council adopted Resolution 1267 on October 15, 1999, under chap-
ter VII of the UN Charter, authorizing the Security Council’s Sanctions Committee
to establish a list of sanctioned individuals, groups, and/or entities that were found
to be associated with Al Qaeda and the Taliban. S.C. Res. 1267, UN Doc S/Res/1267
(October 15, 1999).

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 208 RECOGNIZING GROTIAN MOMENTS

2011, became an instant custom during the days and weeks following the
attacks.”97 Yet, 9/11 is better characterized as a Grotian Moment that is
still at least one case away from fruition. The problem is that the Bush
administration’s assertion that there is no difference between terrorists
and states that harbor them, and its assertion of a right to preventive
self-defense against such states, was unnecessarily broad and lacking
nuance. A state may, for example, harbor a few terrorists or serve as the
organization’s headquarters. The terrorists may be poorly armed or pos-
sess weapons of mass destruction. The state may provide the terrorists
funding, passports, training, and intelligence or may simply be acquiesc-
ing to their presence. The Bush Doctrine provides no guidance on how
these different scenarios should be treated. Concern that the impreci-
sion of the Bush Doctrine would lead to assertions by other states to
justify aggression in the name of self-defense prompted pushback that
took the form of two post-911 cases decided by the International Court
of Justice.
In its 2004 Wall advisory opinion, the ICJ rejected the Israeli claim
to self-defense on the reasoning that self-defense under Article 51 is not
available to Israel against nonstate actors operating on territories under
the control of Israel.98 In its 2005 Armed Activities on the Territory of
the Congo case, the ICJ required the responsibility of the Congo for the
attacks of Ugandan rebels operating from the Congolese territory in
order to i nd Uganda’s right to self-defense lawful.99 These cases signaled

97
Benjamin Langille, It’s Instant Custom: How the Bush Doctrine Became Law after
the Terrorist Attacks of September 11, 2001, 26 Boston College International &
Comparative Law Review 145, 154 (2003).
98
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 2004 I.C.J. 136, 194 (July 9).
99
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo
v. Uganda), 2005 ICJ 168 (holding that Uganda could not rely on self-defense to
justify its military operation in the Congo because (1) Uganda did not immediately
report to the Security Council after its use of force, as required by Article 51; (2)
Uganda’s actions were vastly disproportionate to the threat; and (3) there was no
evidence from which to impute the attacks against Ugandan villages by rebel groups
operating out of the Congo to the government of Congo).

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 THE RESPONSE TO 9/11 209

the ICJ’s “determination to counter a more permissive reading of Article

51” brought on by the international community’s reaction to 9/11.100
Scholars and certain members of the International Court of Justice
have been highly critical of the ICJ’s continued insistence since 9/11 that
self-defense is only available in cases where the attack by nonstate actors
can be attributed to the territorial state. Scholars point out that the ICJ
holdings are inconsistent with the wellspring of the customary law on
self-defense, the Caroline case, which coni rmed that anticipatory force
in self-defense was lawful against nonstate actors whose conduct was
not attributable to a state.101 Writing separately in the Wall case, Judge
Higgins said, “there is, with respect, nothing in the text of Article 51
that thus stipulates that self-defense is available only when an armed
attack is made by a State.”102 Similarly, writing separately in the Congo
case, Judge Koojimans noted that in the era of al Qaeda, it is “unreason-
able to deny the attacked State the right to self-defense merely because
there is no attacker State.”103 Judge Simma similarly concluded in his
separate opinion in the Congo case that “Security Council resolutions
1368 (2001) and 1373 (2001) cannot but be read as afi rmations of the
view that large-scale attacks by non-State actors can qualify as ‘armed
attacks’ within the meaning of Article 51.”104
While the International Court of Justice’s Wall and Congo decisions
may have put brakes on the rapidly crystallizing customary international
law emerging from 9/11, their long-term impact on the development of

100
Theresa Reinold, State Weakness, Irregular Warfare, and the Right to Self-Defense
Post-9/11, 105 American Journal of International Law 244, 261 (2011).
101
See R. Y. Jennings, The Caroline and McLeod Cases, 32 American Journal of
International Law 82 , 82–9 (1938) (quoting 61 Parliamentary Papers (1843)).
102
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 2004 ICJ 136 (July 9) (Separate opinion of Judge
Higgins).
103
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo
v. Uganda), 2005 ICJ 168 (Separate Opinion of Judge Koojimans), para. 28.
104
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo
v. Uganda), 45 I.L.M. 271, 308–9, Dec. 19, 2005 (Democratic Republic of the Congo
v. Uganda) (separate opinion of Judge Simma), para. 11.

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 210 RECOGNIZING GROTIAN MOMENTS

the law of self-defense against terrorists will likely be negligible. This is

because the situations in the Wall and Congo cases are quite distinguish-
able from that of a state using force against terrorists operating in a for-
eign state. In the Wall case, the ICJ stressed that the right to self-defense
under Article 51 of the UN Charter only applied to attacks emanating
from another state and did not apply to attacks originating within the
Occupied Territories, because the area was controlled by Israel.105 In
Congo, as in Nicaragua, the use of force was not limited to attacking
the terrorist group itself, but involved widespread attacks throughout the
territorial state.
This case study indicates how international courts are both capable
of catalyzing and setting back the formation of customary international
law during a potential Grotian Moment. In light of these conl icting
currents, there may not yet be an established norm of customary inter-
national law allowing states to use anticipatory self-defense against non-
state actors regardless of attribution, but the law is visibly moving in this
direction.

105
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 2004 ICJ 136, 139 (July 9).

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