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Jan Kittrich

Abstract

The phenomenon of terrorism represents one of the gravest challenges to international order, peace, and security. The unpredictable nature of terrorist attacks threatens the public safety of each member of the international community. At the same time, member states’ responses to terrorism appear to threaten the homogeneity of modern international law and disrupt the uniform system of legal rules. In some aspects, it also seems to divide the community of international scholars. Simply put, terrorism deviates from the rule of law and so might the responsive action that it necessitates. This is the potential danger that terrorism intentionally aims to escalate. Modern terrorism poses serious and unprecedented challenges to public international law. In particular, it is very difficult to find and identify terrorist groups or infrastructure; international law does not always serve as an efficient deterrent for terrorists, as it is inconsistent and not easily enforceable; the effectiveness of international law is very often limited by the cross-border nature of terrorist networks; terrorists are often located outside the target states and thus the defensive measures mean challenging third, “neutral” states’ sovereignty. But in this sense, it must be admitted that sovereignty cannot be separated from the responsibilities that are linked intrinsically to sovereignty. One of the most essential responsibilities is to prevent its own sovereign territory from being used by non-state entities instigating terrorist or armed attacks against other states. Case law of the International Court of Justice (ICJ) supports the existence of the aforementioned duty. In its Corfu Channel opinion of 1949, the court stated that every state is under an obligation “not to allow knowingly its territory to be used for acts in a manner contrary to the rights of other states.” Allowing its territory to be used by terrorist groups committing attacks against another state will, beyond any doubt, breach the obligation stated above. Thus, the Corfu Channel concept could be applied to terrorist activities. States that allow this situation risk bearing the negative consequences of neglecting their communal duty. Sovereignty should not serve as protection from a state’s responsibility when that state knowingly offers its territory for launching terrorist attacks. As international law should not be a “suicide pact,” it should allow states to defend their legitimate interests and avert danger by force if there is no other alternative. No one can expect that the inability or unwillingness of a state to meet its international legal obligations could impair the essential interest of the threatened state and deprive it of the right to respond by forcible measures. These exceptional measures should be of very limited purpose and scope. One should not forget that the celebrated Caroline opinion of 1837 involved the use of force against armed bands; it was a clear example of forcible incursion into the territory of another state for a limited purpose. It could be inferred from the case that the two states agreed, that in certain limited circumstances, a state might use forcible measures against a non-state entity in cases of “strong overpowering necessity” to prevent the illegal activities of armed bands. When facing the threat of international terrorism, the right of self-defense might seem an appropriate tool against terrorist attacks. In order to make the protection of the rights of member states and the law enforcement process more efficient, the right of self-defense is of great importance and represents the only justifiable resort to unilateral force. The question may be posed: Should self-defense be regarded as a lawful tool when suppressing attacks conducted by highly-organized terrorist groups? Answering this question is difficult as many aspects of the right of self-defense must be assessed and evaluated (e.g., if the right of self-defense is broad enough to include armed strikes against terrorists on the territory of another state; or if the customary conditions of self-defense may be redefined when facing terrorist threats). Because the right of self-defense is linked intrinsically to the concept of state sovereignty, it is left to the discretion of that state to determine whether it will take any defensive measures. Therefore, the state becomes the sole judge of the cause that gives rise to its claimed self-defense. Undoubtedly, acts of international terrorism disrupt the values that are essential for the state; therefore, using military force in self-defense may seem justified.

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