British Institute of International and Comparative Law

Terrorism, the Use of Force and International Law after 11 September Author(s): Michael Byers Reviewed work(s): Source: The International and Comparative Law Quarterly, Vol. 51, No. 2 (Apr., 2002), pp. 401414 Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law Stable URL: http://www.jstor.org/stable/3663235 . Accessed: 07/09/2012 06:16
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SHORTER ARTICLES,COMMENTSAND NOTES

TERRORISM, THE USE OF FORCE AND INTERNATIONAL LAW AFTER 11 SEPTEMBER 2001 was encouraging attacksof 11 September The UnitedStatesresponseto the terrorist on thepartof the single superfor thosewho worryabouta tendencytowardsunilateralism andbuilt an organisations engageda numberof international power.The US deliberately Statesbeforeengagingin militaryaction. extensivecoalitionof supporting such as enablingthe freezing Coalitionbuildingofferedcertainpracticaladvantages, of terroristassets in other States, but it also imposed certainconstraints.Some of the actionwithinthe to keepthe military membersof the coalitionwouldhavebeenconcerned for the US to assertthatit law. For this reason,it was impractical boundsof international which areprecluded was engagedin reprisals, by the UN Charter.1 There were, however, at least four possible legal justificationsfor the use of force VII of the UN Charter, intervention by invitation,humaniChapter againstAfghanistan: and self-defence.It is significantthatthe US relied solely on the last tarianintervention justification. law involved. Argumentsof interThis was not becauseof the kinds of international and self-defenceare all basedlargelyon humanitarian ventionby invitation, intervention, law-that informal,unwrittenbody of rules derived from the customaryinternational Instead,the decisionto opt for self-defencewas drivenby practiceandopinionsof States.2 of international considerations law, politicsandinternational arisingout of the interaction as assessmentsof the four possiblelegal justificationsshow.
VII I. CHAPTER

On 12 September 2001, in Resolution1368,the UN SecurityCouncilstronglycondemned the terroristattacksagainst the US but stopped short of authorisingthe use of force. Instead,the Council expressed 'its readinessto take all necessarysteps', thus implicitly once its militaryplanswere complete.3 the US to seek authorisation encouraging to the Councilto secure thatthe US, at this point,decidednot to return It was reported other members concerned that it was that authorisation.4 might seek to impose a Perhaps Osama suchforce as was necessaryto capture or only authorise time limiton the mandate, Bin Laden.But it seems thatthe US may then have changedits mind. On 28 September 2001, in Resolution1373, the Counciladoptedlanguagethatcouldbe arguedto constitute
I See Security Council Res 188 of 9 Apr 1964, UN Doc. S/5650, < http:www.un.org/documents/scres.htm> ('The Security Council . . . Condemns reprisals as incompatible with the purposesand principlesof the United Nations.'). 2 See generally Michael Akehurst, 'Custom as a Source of International Law,' (1974-5), 47 British Yearbookof InternationalLaw 1; GennadyDanilenko, Law-Makingin the International MartinusNijhoff, 1993), 75-129. Community (Dordrecht: 3 SecurityCouncil Res 1368, UN Doc. SC/7143, <http:www.un.org/documents/scres.htm>. 4 Anne Penketh, 'Annan:UN Must Have Role In Fight Against Terrorism',Independent,25 Sept 2001, 5.

[ICLQvol 51, April 2002 pp 401-414]

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an almostunlimitedmandate to use force.5 The languagewas buriedamong a numberof provisionsconcerningthe freezingof terrorist assets.When those are separated out, the key passagereads: 'TheSecurity Council,... under of theUnited VIIof theCharter Nations, . 'Acting Chapter '2. Decides alsothat all States shall:... of terrorist thenecessary thecommission acts,including.... '(b) Take stepsto prevent Althoughthe languagediffers slightly from that previouslyused to authoriseforce, for VII examplethe phase 'use all necessarymeans',it providesbetterevidenceof a Chapter thaneitherthe 'material authorisation breach'argument used to justify the no-fly-zonesin usedtojustifythe 1999 Kosovo intervention.6 Iraqor the 'impliedauthorisation' argument Moreover,the legalityof any actionunderResolution1373 is unlikelyever to be testedin court, and Washingtoncould veto any furtherresolutionthat might seek to clarify or rescindResolution1373, or condemnactionstakenin relianceon it. The point,therefore, is not that the resolutionshould be read as authorising the use of force-indeed, in my view it does not7-but that it could provide the US with an at-least-tenable argument wheneverandwhereverit decides,for politicalreasons,thatforce is necessaryto 'prevent the commissionof terrorist acts'.8 But the US is not the only Statethatcouldbenefitfromthis.In future,ChinaandRussia could invoke Resolution 1373 and block any attemptsto clarify or rescindit. This may Council Res 1373,UN Doc SC/7158, 5 Security <http:www.un.org/documents/scres.htm>. 6 Onmaterial see Michael forthePossible Use of Force breach, Matheson, 'LegalAuthority

Iraq' (1998) 4 InternationalPeacekeeping 71. On implied authorisation,see BarbaraCrossette, 'Conflict in the Balkans:At the UN; Council Seeks Punishmentfor the Kosovo Massacre',New YorkTimes, 2 Oct 1998, A6; Neil Lewis, 'The Rationale: A Word Bolsters Case for Allied Intervention', New York Times, 4 Apr 1999; Ruth Wedgwood, 'NATO's Campaign in Yugoslavia' (1999) 93 AmericanJournal of InternationalLaw 828 at 829-30. 7 A passage in the NamibiaAdvisoryOpinion((1971) ICJReports 15, 53) providesone of the of SecurityCouncil resolutions:'The language very few authoritative guides to the interpretation of a resolutionof the SecurityCouncil should be carefullyanalysed ... havingregardto the terms of the resolution to be interpreted, the discussions leading to it, the Charterprovisions invoked and, in general,all circumstancesthatmight assist in determiningthe legal consequences...'. The context of Resolution 1373 and the kinds of 'steps' identified all suggest an interpretation that does not include a ChapterVII authorisation for the use of force. see: 'Tony Blair: Interview', Daily 8 For views supportiveof this possible interpretation, Telegraph,24 Oct 2001, 4 ('We are entitledto take actionagainsthim [bin Laden].A UN Security Council resolutionauthorisedthat.'); Serge Schmemann,'UN RequiresMembersto Act Against Terror,'New YorkTimes,29 Sept 2001, Al ('The resolution... could clearlybe interpreted to open the way for the use of force againstthe radicalIslamicTalibangovernment of Afghanistan if it failed to "denysafe haven"to terrorist Paust,'Comment: groups.');Jordan SecurityCouncilAuthorization to Combat Terrorism in Afghanistan,' ASIL Insight, 23 Oct 2001, <http:// The argumentmight be strengthened www.asil.org/insights/insigh77.htm>. by referenceto paragraph3(b) of the same resolution('The SecurityCouncil ... Calls uponall Statesto: ... Cooperate of such acts') and ... to preventand suppressterroristacts and take action against perpetrators Resolution1377, adoptedon 12 Nov 2001 andthus afterthe US beganits militaryoffensive, where the Council 'Calls on all States to intensify their efforts to eliminatethe scourge of international UN Doc S/Res/1377 (2001), <http:www.un.org/documents/ scres.htm>. terrorism',

AllowAttack on theLikesof Iraq,' New York 5 Feb Wren,'UN Resolutions Christopher Times, 'TheEnforcement of Security Council Resolution 687:TheThreat 1998,A6; RuthWedgwood, of Force againstIraq's Weaponsof Mass Destruction' (1998) 92 AmericanJournalof International Law724;D Leurdijk andR Siekmann, 'TheLegalBasisforMilitary Action Against

Against Iraq' (1998) 92 American Society of International Law Proceedings 136 at 141;

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thoughtime pressuresmight also explain why the resolutionwas adoptedunanimously, have played a role. As the Financial Timesreported:'Diplomatswho draftedthe text, all which was passedsurprisingly quickly,now admitthey did not takeinto consideration the possible consequencesof the resolution.'9 the The fact that Chinaand Russia could also arguethat Resolution1373 authorizes use of forceprobably may, afterfurther explainswhy the US has not done so. Washington to its interests to establisha precedent reflection,have decidedthatit was contrary by relythe in on a that could favour of subsequent actionsby resolution strengthen arguments ing otherStates.

BY INVITATION II. INTERVENTION

A second possible legaljustificationwas 'intervention by invitation'.Underinternational law, the governmentof a State is entitledto requestassistancefrom other States in the of rebelgroups.10 The Talibancouldhave beenregarded as a rebelgroup:they suppression rose to power quite recently, were only ever recognised by three States and never controlledall of Afghanistan. They were the targetsof SecurityCouncilcondemnations and ChapterVII sanctions.11 But the invitationto intervenewould have come from the Northern of Alliance,and it was unclearthatthe Alliance was the legitimategovernment as Afghanistaninstead.For the last four years, delegatesfrom both sought accreditation of to the General The their UN country Assembly. Assembly repeatedly representatives deferredits decision.12 This raises the question whetherAfghanistancould have been considereda 'failed withoutan effective government? And if so, did its failureto Was it a territory State'.13 on fulfil all the criteriaof statehoodmeanthatit no longerbenefitedfrom the prohibition at least with regardto military the use of force set out in Article2(4) of the UN Charter,

10 See generally Georg Nolte, Eingreifen auf Einladung-Zur viilkerrechtlichen Zulissigkeit des Einsatzes fremder Truppen im internen Konflict auf Einladung der Regierung (Berlin:

9 Carola 4 Oct Times UN sanctions Financial committee,' (USedition), Hoyos,'UKto chair 2001,2.

in 'Report of theInternational Art 20, ILCDraft Articles on State 1999); Responsibility, Springer, Law Commission on the work of its Fifty-third session,' Official Recordsof the General
Assembly, Fifty-sixth session, SupplementNo. 10 (A/56/10, chap.IV.E.2), available at <http:// ('Valid consent by a State to the commission of a given act by www.un.org/law/ilc/index.htm> anotherState precludesthe wrongfulnessof that act in relationto the former State to the extent to Art 20, ibid, 176, thatthe act remainswithin the limits of thatconsent.'). See also: Commentary para 8 ('Examples of consent given by a State which has the effect of renderingcertainconduct lawful include commissions of inquiry sitting on the territoryof another State, the exercise of relief and rescue operationsand the arrestor detenjurisdictionover visiting forces, humanitarian tion of persons on foreign territory');Commentaryto Art 26, ibid, 209, para 6 ('[I]n applying some peremptorynorms the consent of a particularState may be relevant.For example, a State may validly consent to a foreign militarypresence on its territoryfor a lawful purpose.'). " See, eg Security Council Res 1333, UN Doc S/RES/1333 (2000); Security Council Res 1267, UN Doc S/RES/1267 (1999); both available at <http:www.un.org/documents/scres.htm>. 12 See, eg Report of the Credentials Committee, 11 Dec 1997, UN Doc A/52/719, especially paras9 and 10. Russia and some <http://www.un.org/ga/52/credcomm/reporscr.htm>, of the formerSoviet Central-Asian Republicsdid recognise the Alliance as the legitimategovernment priorto Sept 2001. 13 See generally Daniel Thtirer, 'The "Failed State" and InternationalLaw' (Dec 1999) 81 Review of the Red Cross 731. (836) International

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The Taliban, actiondirectedat terrorists?14 however,hada stronggripon mostpartsof the in country,as evidencedby theirabilityto close down almostall of the opiumproduction that'failedStates'do not benethoseareasundertheircontrol.15 In addition, anyargument fit fromArticle2(4) encounters a seriesof problems.Who decidesthata Statehas failed? once established,retaintheir legal authority What of the presumption that governments, lose muchof theireffectivecontrol?16 And whatof the previous even if they subsequently reluctanceof the international community to conclude that a failure of government in Somalia,SierraLeone, andelsewhere? amountsto a failureof statehood, were politicalconcerns Added to the legal issue of the capacityto invite intervention and consean over-dependence on the Alliance,with its fragmented leadership regarding which made of the was Alliance, Moreover, up minoritytribes quent unpredictability. from the northof the country,was stronglyopposed by Pakistanand had behavedin a of intervention dreadfulmannerwhen previouslyin controlof Kabul.The argument by to powerand thus the claim of the Allianceto return invitationwould have strengthened riskedfurther chaos and suffering. the self-defence Reliance on intervention by invitationwould also have undermined as examinedin some depthbelow. In short,it was easier for the US to claim argument, as controlledby thedefacto government of self-defenceagainstthe Stateof Afghanistan, the Taliban,thanagainstthe terrorists themselves.Recognisingthe Alliance as the legiticlaim untenable. mategovernment would have madethis particular
III. HUMANITARIAN INTERVENTION

law rightof international A thirdpossible legal justificationwas a developingcustomary for humanitarian humanitarian intervention-that is an intervention, unilateral purposes, which has not been authorised by the SecurityCouncil." The UK explicitlyclaimedthe existenceof such a rightwhenjustifyingits actionsin The US, however,was morecautious,refernorthern Iraqin 1991 andKosovo in 1999.18
14

to For a suggestion 'International to this effect,see MichaelReisman, LegalResponses

Terrorism'(1999) 22 HoustonJournal of InternationalLaw 3 at 51-4.

International Law 568; Stefan Talmon, Recognitionof Governmentsin InternationalLaw: With ParticularReferenceto Governmentsin Exile (Oxford:ClarendonPress, 1998). 17 See generally Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in

'End of Taliban WillBring RiseinHeroin' 19Oct2001,10. Independent, 15 Richard Lloyd Parry, 16 Governments of thispresumption. in exile arebutthemostextreme manifestation See:FE and Authoritiesin Exile' (1942) 36 AmericanJournalof 'Governments Oppenheimer,

International Oxford Tes6n,Humanitarian Press,2000);Fernando Society(Oxford: University

Intervention:An Inquiry into Law and Morality (2nd edn) (Dobbs Ferry, NY: Transnational, Keohane, Humanitarian Intervention: Principles, Institutions and Change (Cambridge:

theRulesabout Rules?Unilateral 1997).Cf. Michael 'Changing ByersandSimonChesterman, and Robert of International Law' in JL Holzgrefe Humanitarian Intervention and the Future Press, 2002). Cambridge University forthcoming 18 SeeAnthony statement before the & Commonwealth Aust,LegalCounsellor, Office, Foreign 2 Dec 1992,Parliamentary House of Commons Affairs Committee, Papers,1992-3,HC, Foreign
in (1992) 63 British Yearbook Law 827; Sir Jeremy of International Paper235-iii, 85, reproduced

Law 580-1. See also 4th Reportof the House of CommonsForeign Affairs Committee, 2000, HC

to theSecurity Council on 24 Mar UKPermanent to theUN,statement Greenstock, Representative Yearbook in (1999)70 British 1999,UN DocS/PV.3988 (1999)11-12,reproduced ofInternational

humanitarian intervention 28-I, whichpointsout thatthe UK Government justified only 'as an in support ... where measure of purposes laiddownbytheUN Security Council thatis exceptional theonlymeans to avert animmediate andoverwhelming humanitarian catastrophe'.

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to 'humanitarian concerns'butneverexplicitlyclaimingthe existenceof a ringrepeatedly rule.19 for its part,gave its consentto the Kosovo intervention on the customary Germany, Some conditionthat it was made clear thatthis was not a precedentfor furtheraction.20 academiccommentators, it mustbe said, were not nearlyso hesitant.21 evident in statementsmade The desire to avoid setting a precedentwas particularly of State,MadeleineAlbright,stressedthat afterthe air campaign.The then US Secretary Kosovo was 'a uniquesituationsui generis in the region of the Balkans'and thatit was 'not to overdraw the variouslessons thatcome out of it'.22 important the US from It may be that a similar anxiety about creatinga precedentrestrained this such an time. The would have been anxiety augmented by the fact invoking argument that the precedentcreated would have been more sweeping than that arising out of Kosovo. The SecurityCouncilhad not deemedthe food crisis in Afghanistana threatto the peace andthe intervention was, at least initially,conductedby two Statesonly. could actually It is morelikely thatthe US was concernedthatusing such an argument of a humanitarian in limit its abilityto use force.If the threat Kosovo catastrophe provided the sovereignrightsof Yugoslavia,the threatof one in Afghanistan a basis for overriding was the basis for sayingthatthe bombing,even if lawful,shouldbe stoppedso as to allow food in.23 In any event, the apparentincongruityof invoking a humanitarian argumentin this from the outset. to terrorist acts response probablyprecluded justification
IV. SELF-DEFENCE

law thatis particThe US insteaddecidedto rely on self-defence,an areaof international 51 of the difficult Article UN Charterstipcontentious and to analyse. Although ularly ulates the conditions giving rise to a right of self-defence and that acts of self-defence must be reportedto the SecurityCouncil, it does not define the content of that right.24 law.25 Self-defence is partof customaryinternational
19 See, Words: "WeAct to speechon 24 Mar 1999:'In the President's eg, Bill Clinton's thousands of New York 25 Mar1999,A15 ('We act to protect Prevent a WiderWar",' Times, innocent people in Kosovo from a mountingmilitaryoffensive.'). 20 Deutscher Bundestag, Plenarprotokoll13/248, 16 Oct 1998, 23129, available at <http:// dip.bundestag.de/parfors/parfors.htm>. 21 See, eg Neil A Lewis, 'The Rationale:A Word Bolsters Case for Allied Intervention,'NY Times, 4 Apr 1999 (quoting Abram Chayes, Diane Orentlicher, Michael Reisman, Ruth Wedgwood and Thomas Franck); Christopher Greenwood, 'Yes, But Is the War Legal?', Observer, 28 Mar 1999; Ruth Wedgwood, 'NATO's Campaign in Yugoslavia,' (1999) 93 AmericanJournal of InternationalLaw 828. 22 US Secretaryof State MadeleineAlbright,Press Conferencewith RussianForeignMinister Igor Ivanov, Singapore, 26 July 1999 <http://secretary.state.gov/www/statements/1999/ 990726b.html>. 23 Kim Sengupta andCahalMilmo, 'UN DemandsPauseIn BombingTo Let Aid ReachStarving Afghans', Independent,13 Oct 2001, 1; Andrew Buncombe and Colin Brown, 'Short Demands EarlyEnd To Offensive As StrayBomb Hits KabulHomes,' Independent,14 Oct 2001, 1. 24 Art 51 reads: 'Nothing in the presentChartershall impairthe inherentright of individualor collective self-defence if an armedattack occurs against a Member of the United Nations, until the Security Council has taken measuresnecessary to maintaininternational peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reportedto the SecurityCouncil and shall not in any way affect the authorityand responsibilityof the SecurityCouncil underthe presentCharterto take at any time such action as it deems necespeace and security.' sary in orderto maintainor restoreinternational 25 See generally Ian Brownlie, InternationalLaw and the Use of Force by States (Oxford:

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are the key requirements. Necessity and proportionality During the 1837 rebellion in Upper Canada,British forces capturedan American ship that was being used to supply the rebels on the Canadianside of the NiagaraRiver, set it on fire and sent it over NiagaraFalls. The US assertedthat the United Kingdomhad to show this was a necessary and proportionateact of self-defence. The UK agreed with the American assessmentof the legal requirements, and the modernlaw of self-defence was born.26 The UK was also involved in a more recent precedent:its response to the 1982 Falklands/Malvinas invasion was a necessary and proportionate act of self-defence.27 But most claims of self-defence arise in circumstancesthat are less clear cut. Their contribution to the ongoing development of customary internationallaw turns on whetherthey are widely acceptedby other States. For example, in 1976 Israeli commandos stormed a hijacked plane in Entebbe, Uganda, killing the pro-Palestinian hijackersand rescuing most of the passengersand crew. Althoughmanyof the passengerswere Israeli,Israelitself had not been attacked. Nor had it sought Uganda's permissionfor the raid. But most States tacitly approved of what Israel had done. The requirements of necessity and proportionality were, as a result, loosened somewhatwith regardto the rescue of nationalsabroad.28 In contrast,when Israeldestroyedan Iraqinuclearreactorin 1981, its claim of selfdefence was firmly rejectedby other States.29Since a nuclearstrikehad not occurred, and was not imminent, the requirementsof necessity and proportionalitywere not fulfilled. Any right to engage in anticipatoryacts of self-defence remained tightly constrained.

V. RESPONSETO TERROR

Today, the question arises as to whether the right of self-defence extends to military since most such responses will violate the terriresponses to terroristacts, particularly torial integrity of a State that is not itself directly responsible.For decades, the US, Israeland apartheid SouthAfricapromotedsuch a claim. For example, in 1986 the then US Secretaryof State George Shultz said: restrictions on theuse or threat of forcein international relations include [T]heCharter's a specific fortheright of self-defense. It is absurd to argue thatinternational law exception us fromcapturing terrorists in international or airspace; fromattacking waters prohibits themon thesoil of other evenforthepurpose of rescuing or fromusing nations, hostages; forceagainst states thatsupport, andharbor terrorists orguerrillas.30 train,
Clarendon Press, 1963) 231-80; Bruno Simma (ed), The Charter of the United Nations: A Commentary(Oxford: Oxford University Press, 1994) 661-78; Nicaragua case (1986) ICJ Reports 14 at 102-6, 110, 122-23, paras 193-201, 210-11, 236-7. 26 See 29 British and Foreign State Papers 1137-38 and 30 British and Foreign State Papers 195-6; Robert Jennings, 'The Caroline and McLeod Cases,' (1938) 32 American Journal of InternationalLaw 82. 27 See generally:Alberto Coll and Anthony Arend, The Falklands War:Lessonsfor Strategy, Diplomacy, and InternationalLaw (Boston: G Allen & Urwin, 1985). 28 See: UN Doc S/PV 1939, 27, 51-9, 92 and UN Doc S/PV 1941, 31-2, reproduced in (1976)

Abroad,' (1977) 5 InternationalRelations 3. 29 See Security Council Res. 487 (1981) (unanimous), <http:www.un.org/documents/ scres.htm>. 30 Shultz, 'Low-Intensity Warfare:The Challenge of Ambiguity,' Address to the National

15 International 'TheUseof Force to Protect Nationals 1224;Michael Akehurst, LegalMaterials

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Although invocations of this position to justify specific uses of force have been accepted in some instances,31the patternof response has not been clear enough to law. For example, Israelclaimed to be acting in establish new customaryinternational of the PalestineLiberationOrganisation self-defence when it attackedthe headquarters in Tunisia in 1985. The Security Council strongly condemned the action.32In 1998, afterthe bombingsof its embassies in Kenya andTanzania,the US firedcruise missiles at targets in Sudan and Afghanistanand claimed self-defence. A numberof governments expressed concern aboutthe fact that the territorial integrityof sovereign States was violated in an attemptto target, not the States themselves, but terroristsbelieved to be presentthere.33 Even when the State concerned is directly implicated in terrorism,acts of selfdefence directed against it have-in most instances-received at best a mixed bomb in a Berlin nightclubkilled a numberof American In 1986, a terrorist response.34 soldiers. The US respondedby bombing Tripoli, and claimed self-defence. The claim was widely rejected, with many States expressing doubt as to whether the attack on In 1993, in Kuwait,an assassinationattempt Libya was necessary and proportionate.35 of the was made on George Bush Sr. The US respondedby bombing the headquarters Iraqi Secret Service. It claimed self-defence on the basis that the attack on the exto an attackon the US itself. Again, the claim received little Presidentwas tantamount from other States.36 support Courtof Justice acceptedthat self-defence In the Nicaragua Case, the International could include responses to the 'sending by or on behalf of a State of armed bands, or mercenaries,which carryout acts of armedforces againstanother groups, irregulars State of such gravity as to amountto (inter alia) an actual armedattackconductedby regular armed forces, or its substantialinvolvement therein'.37In other words, the
Defense University, Washington,DC, 15 Jan 1986, reproducedin (1986) 25 InternationalLegal Materials 204 at 206. The so-called 'Shultz Doctrine' was first articulatedon 25 Oct 1984. See Terrorism,'New YorkTimes, 26 Oct 1984, 'Excerpt's From Shultz's Address on International A12. For a wide-ranging analysis, see Jordan Paust, 'Responding Lawfully to International Law Review 711. The Use of Force Abroad' (1986) 8 Whittier Terrorism: 31 See the extensive analysis of State practice in: Claus Kress, Gewaltverbot und in Nationen bei staatlicher Verwicklung nach der Satzungder Vereinten Selbtsverteidigungsrecht

Duncker Privater & Humblot, Gewaltakten 1995). (Berlin:

32 SecurityCouncil Res 573 (1985), < http:www.un.org/documents/scres.htm>. The resolution was adoptedwith fourteenvotes in favour and one abstention:the US. 33 See Final Document of the XIIth Summit of the Non-aligned Movement, 2-3 Sept 1998, Durban, South Africa, <http://www.nam.gov.za/xiisummit/>, para 159; (1998) Africa Research Bulletin 13268; Christine Gray, International Law and the Use of Force (Oxford: Oxford University Press, 2000) 117-8. Cf Ruth Wedgwood, 'Responding to Terrorism:The Strikes Law 559. against Bin Laden' (1999) 24 Yale Journalof International 34 Some academic commentatorshave been less equivocal. See, eg Antonio Cassese, 'The International Community's"Legal"Response to Terrorism'(1989) 38 ICLQ 589 at 598 ('where the terroristsare officials of the State or are de facto effectively controlledby it ... international to the State and a use of force against it by way of law is clear: the terroristattackis attributable individualor collective self-defence is allowed.'). 35 See Gray, op cit 116-17; Michael Reisman, 'International Legal Responses to Terrorism' Law 3 at 33-4. (1999) 22 Houston Journalof International 36 See Dino Kritsiotis, 'The Legality of the 1993 US Missile Strike on Iraq and the Right of Law' (1996) 45 ICLQ 162; Gray, 'After the Cease-fire: Iraq, the Self-Defence in International Security Council and the Use of Force' (1994) 65 British Yearbookof InternationalLaw 135 at 37 Nicaragua Case (1986) ICJ Reports 14 at 103, para 195. 169-72.

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Courtheld that an 'armedattack'exists only when the link between the State and the non-State actor is very close, and the attackis of a seriousness akin to an attackby a State. This position is consistent with the law of State responsibility insofar as it of the acts of non-Stateactorsto a State.38 concerns the attribution In late September2001, the US found itself in somethingof a legal dilemma,though not an entirely unhelpfulone. In orderto maintainthe coalition against terrorism,its This meantthatthe strikeshad militaryresponsehad to be necessaryandproportionate. to be carefully targeted against those believed responsible for the atrocities in New York and Washington.But if the US singled out Bin LadenandAl-Qaedaas its targets, it would have run up againstthe widely held view that terrorist attacks,in and of themdo not 'armed constitute attacks' selves, justifying militaryresponsesagainstsovereign States. Even today, most States would not supporta rule that opened them up to attack whenever terroristswere thoughtto operatewithin theirterritory. In response to this dilemma, the US adopteda two-prongedlegal strategy.First, it expanded its focus to include the Taliban.39By giving refuge to Bin Laden and AlQaeda and refusing to hand him over, the Talibanwere alleged to have directlyfacilitated and endorsed his acts. Moreover, their continued presence as the de facto governmentof Afghanistanwas viewed as a threat,in andof itself, of even moreterrorism. As John Negroponte,the US Permanent Representativeto the UN, explained in a letter to the Presidentof the SecurityCouncil on 7 October2001: on 11 September The attacks 2001 andthe ongoingthreat to the UnitedStatesandits nationals havebeenmadepossible of posedby theAl-Qaeda organization by thedecision theTaliban to allowtheparts of Afghanistan thatit controls to be usedby thisorgaregime nization as a baseof operation. Despite everyeffortby theUnitedStatesandtheinternahasrefused tionalcommunity, theTaliban to change its policy.From theterritory regime of Afghanistan, theAl-Qaeda continues to train andsupport of terror agents organization who attack innocent the worldandtarget UnitedStatesnationals and peoplethroughout in theUnited interests States andabroad.40 The US in this way broadened the claim of self-defence to include the State of Afghanistan.Although it would normally still be contentious, this is much less of a stretchfrom pre-existinginternational law than a claimed right to attackterroristswho
38 Underthe law of Stateresponsibility,Statesare only responsiblefor customaryinternational those acts of privateindividualsor groupsover which they exercise 'effective control'. See Art 8, ILC Draft Articles on State Responsibility,in 'Reportof the International Law Commission on the work of its Fifty-thirdsession,' OfficialRecords of the GeneralAssembly,Fifty-sixthsession, SupplementNo. 10 (A/56/10, chap.IV.E.2), available at < http://www.un.org/law/ilc/index.htm> ('The conduct of a person or groupof persons shall be consideredan act of a Stateunderinternational law if the person or group of persons is in fact acting on the instructionsof, or underthe directionor control of, that State in carryingout that conduct.');Commentaryto Art 8, ibid, 104, to the State only if it directedor controlledthe specific para3 ('Such conduct will be attributable operationand the conductcomplainedof was an integralpartof thatoperation.').On Stateresponsibility and terrorismspecifically, see Luigi Condorelli, 'The Imputabilityto States of Acts of International Terrorism'(1989) 19 Israel Yearbookon HumanRights 233. 39 It is possible that the expansion was driven, not only by legal strategy, but also by the discovery of evidence implicatingthe Talibanin the attacksof 11 September.See 'Blair Presents His Case Against Al-Qa'ida Network,' Independent,5 Oct 2001, 4; 'The allies' case against Bin Laden:Extractsfrom yesterday'sgovernmentdocument,' Guardian,5 Oct 2001, 4. 40 UN Doc S/2001/946, available at See also: <http://www.un.int/usa/s-2001-946.htm>. Wren, 'US Advises UN. Council More StrikesCould Come,' New YorkTimes,9 Oct Christopher 2001, B5.

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of anotherState.41 simply happenedto be within the territory Subsequentstatementsby the Taliban, apparentlyendorsing the terroristacts, may furtherhave engaged their law, this might legal responsibilityeven if, underpre-existingcustomaryinternational not have made them responsible for an 'armed attack'.42And for these reasons, the claim to be acting in self-defence againstthe State of Afghanistan-and the modification of customary internationallaw inherent within that claim-had a much better chance of securingthe expressed or tacit supportof a large numberof other States. Second, the US workedhardto secure widespreadsupportin advanceof its military action. The formationof the coalition, includingthe invocationof Article 5 of the 1949 NorthAtlanticTreatyandArticle 3(1) of the 1947 Inter-American Treatyof Reciprocal Assistance, even though neither NATO nor the parties to the Inter-American Treaty were called upon to engage in military action, helped smooth the path for the selfdefence claim.43 Both groups identified the events of 11 September as an 'armed attack'. Similarly, the Security Council resolutions adopted on 12 and 28 September were carefully wordedto affirm, within the context of a broaderresponse to terrorism, law.44 the right of self-defence in customaryinternational This second strategybuilt upon an approachpreviously used in 1998. A few short hoursbefore he orderedthe cruise missile strikesagainstterroristtargetsin Sudanand Afghanistan,Bill ClintontelephonedTony Blair, HelmutKohl, andJacquesChiracand requestedtheir support.Without having time to consult their legal advisers, all three leaders agreed-and followed this with public statements immediately after the strikes.45Criticism of the military action by other States was, consequently, more restrainedthan it might have been. And this relatively restrainedresponse facilitated the eventual modification of customary internationallaw that has now quite clearly occurred. As a result of the legal strategies adopted by the US, coupled with the already contested characterof the rule and a heightenedconcern about terrorismworld-wide, the right of self-defence now includes militaryresponses against States which actively terrorist groupswho have alreadyattackedthe responding supportor willingly harbour
41 For prior academic commentaryto this effect, see Oscar Schachter, 'The Lawful Use of Force by a State against Terroristsin Another Country' (1989) 19 Israel Yearbookon Human Rights 209 at 215-18. of 42 See 'MullahOmar-in his own words', Guardian,26 Sept 2001, Features,3 (translation interviewwith Voice of America); UnitedStates Diplomaticand ConsularStaff in Tehran(1980) ICJ Reports 3 at 36, para 74 (Once the Governmentof Iran endorsed the illegal acts of Iranian militants,it became legally responsiblefor those acts itself). 43 See Suzanne Daley, 'For First Time, NATO Invokes Joint Defense Pact With US,' New YorkTimes, 13 Sept 2001, A17; Suzanne Daley, 'NATO Says US Has Proof Against bin Laden Group,' New YorkTimes, 3 Oct 2001, Al; 'Rio Treaty CountriesLend Full Supportto United States,' OAS Press Release E-213/01, 16 Oct 2001, <http://www.oas.org>.The North Atlantic Treaty ('Washington Treaty') may be found at <http://www.nato.int/docu/basictxt/treaty.htm>; the Inter-American Treaty('Rio Treaty') at <http://www.oas.org>. 44 Security Council Res 1368, UN Doc SC/7143; Security Council Res 1373, UN Doc The language used in the SC/7158; both available at <http:www.un.org/documents/scres.htm>. two resolutionsdiffers slightly. Resolution 1368 reads, inter alia: 'Recognizing the inherentright of individualor collective self-defence in accordancewith the Charter'.Resolution 1373 reads, interalia: 'Reaffirmingthe inherentrightof individualor collective self-defence as recognizedby the Charterof the United Nations as reiteratedin resolution 1368 (2001)'. It could be arguedthat the language used in the second resolutionis more expansive-and thus less restraining. 45 William Drozdiak, 'European Allies Back US Strikes; Japan Says It "Understands",' Post, 21 Aug 1998, A20. Washington

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State.46And in accordancewith a longstandingconsensus-and Article 51 of the UN Charter-self-defence can be either individualor collective, enabling States that have been attackedby terroriststo call on other States to participate. The long-termconsequencesof this strategicapproachmay be significant.Had the US relied on argumentsof Security Council authorisation, invitationor humanitarian intervention,it is unlikely thatmany States would have objected,butnext time it would have been more difficult to act alone or in the absence of such additionalconditions. Althoughpreviousattemptsto establisha rightto engage in self-defence againstterrorists proved largely unsuccessful due to a lack of international support,the situationin the aftermathof 11 Septemberwas considerablymore conducive. Having seized the opportunityto establish self-defence as an accepted basis for military action against some terroristattacks, the US will now be able to invoke it again--even when the circumstancesare less grave. It is thus plausibleto regardthe choice of justificationas, in part, a strategic decision directed at loosening the legal constraintson the use of force to the ongoing advantageof the US. VI.PRE-EMPTIVE ACTION The US may now be employing similarlegal strategiesin an effortto develop or extend a right of anticipatoryself-defence againstterroristacts. Until 11 September,any right to pre-emptiveaction was widely contested-and thus tightly constrained.When Israel In destroyedthe Iraqi nuclearreactor,its claim of self-defence was firmly rejected.47 fact, Article 51 of the UN Charterstates that the right of self-defence arises when 'an armedattackoccurs' and most States have, since 1945, been very reluctantto claim a right of anticipatoryself-defence. Israel justified the strikes that initiated the 1967 Six Day War on the basis that The US justiEgypt's blocking of the Straitsof Tiran was a prior act of aggression.48 fied its 1962 blockade of Cuba on the basis of ChapterVIII of the UN Charter,as regional peacekeeping,49and the 1988 downing of an Iraniancivilian Airbus as a response to an ongoing armed attack.50An ongoing series of attacks might justify a

46 For a similar view, see: Frederic Kirgis, 'Israel's Intensified Military CampaignAgainst Terrorism,' ASIL Insight, Dec 2001, <http://www.asil.org/insights.htm> ('Because customary international law is often developedthrougha process of official assertionsand acquiescences,the absence of challenge to the US assertedright of self-defense could be taken to indicate acquiescence in an expansion of the right to include defense against governmentsthat harboror support organizedterrorist groupsthatcommit armedattacksin othercountries.').For evidence of support from other States, see, eg, 'Assembly Winds Up Week-Long Debate on Elimination of Terrorism,'UN Press Release GA/9929, 5 Oct 2001, <http://www.un.org/News/Press/docs/2001/ ga9929.doc.htm>; 'Universal Condemnation of Terrorism Continues in Assembly's General Five PresidentsHeard,'UN Press Release GA/9959, 11 Nov Debate, Counter-ActionSupported; 2001, <http://www.un.org/News/Press/docs/2001/ga9959.doc.htm>; Serge Schmemann, 'Near Unity at the UN On OpposingTerrorism,'New YorkTimes, 17 Nov 2001, B5. 47 See Security Council Resolution 487 (1981) (unanimous),<http:www.un.org/documents/ scres.htm>;discussion, above 406. 48 (1967) United Nations Yearbook 166, 174 and 196. 49 AbrahamChayes, 'Law and the Quarantine of Cuba,' (1963) 41 Foreign Affairs 550. 50 (1988) United Nations Yearbook 199; Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States of America), PreliminaryObjections,writtenpleadings of US, PartI, Ch II (available at: <http://www.icj-cij.org/icjwww/Icases/iirus/iirusframe.htm>).

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responseon the basis thateach incidentis partof a largercampaign,which, as a whole, constitutes the armed attack. But there is relatively little supportfor a right of anticilaw-either generpatoryself-defence, as such, in presentday customaryinternational ally or in respect of terroristacts.51 This does not mean that this aspect of the law will remainunchanged.In his letter of 7 October 2001, AmbassadorNegroponte did more than invoke the right of selfdefence with regardto Afghanistan.He also wrote: 'We may find that our self-defense The US, requiresfurtheractions with respectto otherorganisationsand other states.'52 in extending its claim beyond Al-Qaeda, is clearly contemplatingwidespreadmilitary action of a pre-emptive characterthat it would justify as anticipatoryself-defence. Negroponte's letter could be seen as a step towards securing advancedsupportfor an extension of the right of self-defence to encompassthis previously contested sphere.53 Indeed, the letter attractedlittle in the way of protestsfrom other States-an omission that might, if continuedin the face of actionjustified as anticipatoryself-defence-be regardedas evidence of acquiescencein yet anotherchange to customaryinternational law.

AND THE UN CHARTER VII. SELF-DEFENCE

does not define self-defence, the Charter AlthoughArticle 51 of the UN Charter system does impose some limits on the exercise of the right.54 Thereis likely to be considerable debateover these limits in the monthsandyears to come. For example,the rightof selfdefence is conditionedon the occurrenceof 'an armedattackagainst a Memberof the United Nations'.55It will probablybe arguedthatthe atrocitiesof 11 Septemberdid not constitutean armedattacksince they did not involve the use of force by a State,and that the relevantframeworkof analysis is instead international criminallaw. In response,it fails to distinguishbetween 'aggression'in the sense of mightbe said thatthis argument Articles 1(1) and 39 of the Charter, and an 'armedattack'in the sense of Article 51 (at least in its English version).56 But the debateover 'armedattack'will be irrelevant: by expanding its claim of self-defence to include the Taliban and securing the advance
51 See Gray,InternationalLaw and the Use of Force (Oxford:OxfordUniversityPress, 2000)

Law(9th andSirArthur Watts International 111-15.Cf SirRobert (eds),Oppenheim's Jennings thattheInternational Court of Justice, in 1992),421-2. It is noteworthy edn)(London: Longman, the use of nuclear itself unableto conclude whether weaponswouldbe legal in 'an extreme of a Statewouldbe at stake'(1996)ICJ of self-defence, in whichtheverysurvival circumstance atpara 97. 226, <http://www.icj-cij.org>, Reports See also 52 UN Doc S/2001/946,availableat <http://www.un.int/usa/s-2001-946.htm>. MoreStrikes Could 9 Oct Come,'NewYork Wren,'USAdvisesUN Council Times, Christopher 2001,B5. 53 TheUKwouldseemto havealready in a speech its support, delivered expressed byDefence to fightterror worldwide, GeorgeHoon.See Richard Norton-Taylor, 'Prepare says Secretary andstateswhichharbour 6 Dec 2001, 6 ('Wemayneedto coerceregimes or Hoon,'Guardian, withthe threat the use of, military international forcein the terrorism, and,ultimately support andothermeans eventthatdiplomatic fail.'). andthe Security Council: WhatDoes Article51 Require?' 2001);DW Greig,'Self-Defence 366. (1991)40 ICLQ 55 Forthefulltextof Art51, see above,n 24. 56 TheFrench armie. version of agression speaks simply
54 See generally Nico Krisch, Selbstverteidigungund kollektiveSicherheit (Berlin: Springer, its Nuclear WeaponsAdvisoryOpinion,made no referenceto anticipatoryaction when it declared

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supportof a large numberof other States, the US has effectively overcome any such The attacks on New York and Washingtonengaged individual criminal limitation.57 responsibility, but State-sponsoredterrorismon this scale now also constitutes an 'armedattack'. Article 51 also stipulates that the right of self-defence exists 'until the Security Council has taken measuresnecessary to maintaininternational peace and security'.58 It could be argued that the adoptionof Resolutions 1368 and 1373, ratherthan reinforcing the rightof the US to engage in self-defence againstAfghanistan,insteadsuperseded that right. Both resolutions were adoptedin direct response to the terroristacts ratherthan pursuantto a US reportof self-defence action, both were adopted under Chapter VII, and both call upon or require States to take a range of non-forceful measures to combat terrorism.They could thus be seen as constituting 'measures necessaryto maintaininternational peace and security'. There are at least three legal or practicalproblemswith this argument.First, it fails to explain why the Security Council, in both instances, was careful to recognise 'the inherentright of individualor collective self-defence'. This explicit recognitionwould make little sense if the Council intendedto supersedethe US right to engage in defensive action. Although the US is not identified specifically as the State having the right to engage in self-defence,59the thrust of both resolutions is clearly to express and provide wide-reaching support for the US. Subsequent support for the US military action reinforces this interpretation.60 Secondly, even if the argumentcarried some weight, the argumentthat the right of self-defence survives, because it has explicitly been recognised in the same two resolutions, is no less tenable. And in the realm of international politics, at least, a tenable argumentmay well be good enough-particufor the larly single superpower.6'Thirdly, the argumentignores the possibility that Resolution 1373 could be arguedto contain an almost unlimitedChapterVII authorisation of the use of force.62Arguingthat the rightof self-defence has been superseded consequence of provokingthe invocationof this aspect of might have the unfortunate the resolution,therebyopening the door for furthersuch invocations,by Russia, China and others, once the currentconsensus on the use of force disappears.

58 Forthefulltextof Art51, see:above,n 24. 59 In contrast, invasion of resolution aftertheIraqi the Security Council immediately adopted in response to the of individual orcollective self-defence theright Kuwait recognized specifically
armed attack against Kuwait. See Res 661 (1990) <http:www.un.org/documents/scres.htm>; Colin Warbrick,'The Invasionof Kuwaitby Iraq' (1991) 40 ICLQ482 at 483-8. 60 See, eg, 'Assembly Winds Up Week-Long Debate on Eliminationof Terrorism,'UN Press Release GA/9929, 5 Oct 2001,<http://www.un.org/News/Press/docs/2001/ga9929.doc.htm>; 'UniversalCondemnation of Terrorism Continuesin Assembly's GeneralDebate,Counter-Action Supported; Five Presidents Heard,' UN Press Release GA/9959, 11 Nov 2001, <http:// www.un.org/News/Press/docs/2001/ga9959.doc.htm>; Serge Schmemann, 'Near Unity at the U.N. On OpposingTerrorism,'New YorkTimes, 17 Nov 2001, B5. 61 See Sir ArthurWatts, 'The Importanceof International Law', in Michael Byers (ed), The Role of Law in InternationalPolitics (Oxford:Oxford University Press, 2000), 5 at 8 ('There is

57 See discussion: above, 408-9.

roomfor the viewthatall thatStatesneedfor the general of conducting theirinternapurposes

tional relationsis to be able to advancea legal justificationfor theirconduct which is not demonstrablyrubbish.Thereafter,political factorscan take over ....'). 62 See discussion: above 401-3.

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Apart from the extended scope of the right of self-defence, there are at least three relatedconsequences that bear consideration. First, the strengthof the argumentsthatthe US did not use is likely to remainunaffected by the decision to focus on self-defence. Argumentsas to a possible ChapterVII interventionwill be no less availinvitationand unilateralhumanitarian authorisation, able in future,should the facts accommodatethem. Secondly, the extension of the right of self-defence to include action against States raises difficult issues of evidence terrorists actively supportingor willingly harbouring and authority. Simply put: who decides that there is sufficient evidence of State that selfcomplicity to justify the use of militaryforce? Is the Article 51 requirement defence measures be reported to the Security Council sufficient protection against incautious or opportunisticbehaviour-especially given that five of the States most able to engage in such measures have the capacity to veto any resolution directed against them? These issues become only more difficult in the context of an extension of the right of self-defence to include pre-emptiveaction. Thirdly, extending the right of self-defence to include action against States willingly harbouringterroristscreates a potentially awkwardoverlap between the law of self-defence and the law of judicial co-operation,especially with regardto extradition. At what point is a State's rightto choose between prosecutingor extraditingan accused terroristsupersededby a second State's right to use force in self-defence against it? Should the second State be requiredto presentevidence of culpabilityto the first State before launching self-defence action? Or should the Article 51 reportingrequirement so that a State wishing to engage in self-defence against a terroristbe reinterpreted State must first present evidence to the Security Council and receive its harbouring approval?This, it may be noted, is essentially what occurredwith Resolution 1373.63 The right to choose between prosecutionor extraditionwas overriddenby the Council on a previous occasion-though not one involving a claim of self-defence-with regardto two Libyannationalsaccused of having committedthe Lockerbiebombing.64 Resolution 748 effectively suspended Libya's right, under the 1971 Montreal Conventionfor the Suppressionof Unlawful Acts againstthe Safety of Civil Aviation, to prosecutethe accused in Libya ratherthan extraditethem abroad.65 Although terrorism is not a crime falling within the Rome Statute of the International CriminalCourt,some terroristacts, such as the attacksof 11 September, a scale that makes them crimes againsthumanity.66 This raises the question be of may 63 See discussion: above408-9. 64 Security Council Res.748 (1992),<http:www.un.org/documents/scres.htm>.

65 (1975) 974 United Nations TreatySeries 177, <http://untreaty.un.org>. 66 See, eg Art 7(1)(a) of the ICC Statute, setting out the elements of the crime against humankilled one or more person. 2. The conduct was committed as ity of murder:'1. The perpetrator partof a widespreador systematicattackdirectedagainsta civilian population.3. The perpetrator knew that the conduct was partof or intendedthe conduct to be partof a widespreador systemic CriminalCourt,UN Doc attackagainsta civilian population.'-Rome Statuteof the International A/Conf.183/9 (1998), <http://www.un.org/law/icc/statute/romefra.htm>. However, a proposalto include terrorismitself as one of the crimes subjectto the jurisdictionof the ICC was rejectedby the Rome Conference. See UN Doc A/CONF.183/C.1/L27; Neil Boister, 'The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed InternationalCriminal Court: Law, Pragmatism,Politics,' (1998) 3 Journal of Armed ConflictLaw 27.

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of the relationshipbetween the new right to engage in self-defence against States willingly harbouringterrorists and the soon to be in place mechanisms of the ICC. criminallaw and the law governingthe use of force necessarily Althoughinternational in operate tandem-indeed, one of the primaryheads of ICCjurisdictionis to be 'war crimes'-they remain conceptually and practically distinct. The important role accordednationalcourts is a reflection of this distinction.67 Extendingself-defence to include attacks on States willingly harbouringterroristscould create an additional, awkwardoverlap with these new institutionalmechanisms. These and other problemswill have to be resolved in orderto enable the extended right of self-defence to co-exist easily with other, related fields of internationallaw. But the existence of these problems does not mean that the extension of the right of Wattshas explained,with considself-defence is necessarilya bad thing. As Sir Arthur erable prescience: to thetimesand hasto be an inherently relative Self-defence concept-relative probably in whichit is involved. on thedaysof navalwarfare, suchas circumstances Self-defence in thedaysof nuclear is a verydifferent thatat Trafalgar, warfare, thingfromself-defence in theworld of easytransport to almost Exocetmissiles, andthepossibility anydestination of anthrax or nerveagents. All thesame,therearelimitsto theburden of smallpackages to bear. Itis essenwhichtheconcept of self-defence cansafely,andlegally, be called upon circumstances must be evaluated andits application to anyparticular tiallya legalconcept, law.To stretch theconcept to suchanextent that it departs in accordance withinternational servesnot fromtheordinary of theterm,as refined byjudicial pronouncements, meaning thelawin general into thisparticular branch of thelaw,butalsoto bring onlyto undermine disrepute.68 The events of 11 Septemberhave set in motion a significant loosening of the legal constraintson the use of force, and this in turnwill lead to changes across the internalaw are tional legal system. Only time will tell whetherthese changes to international themselves a necessary and proportionate response to the shifting threatsof an all too dangerousworld.
MICHAEL BYERS*

67 On CriminalCourt, UN 'complementarity',see Art 17, Rome Statute of the International Doc A/Conf.183/9 (1998), <http://www.un.org/law/icc/statute/romefra.htm>. 68 Sir ArthurWatts, above n 61, at 11. * Associate Professor,Duke University School of Law; Peter North Visiting Fellow, Centre I for Socio-Legal Studies and Keble College, Oxford University. E-mail: byers@law.duke.edu. am grateful for constructive criticism from Marcelo Kohen, Claus Kress, Nico Krisch, Georg Nolte, Scott Silliman, Colin Warbrick,and audiences at the universities of K61n, Lancaster, Oxford, and Wales (Aberystwyth).