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Harvard International Law Journal

Winter, 2002

Focus: September 11, 2001—Legal Response to Terror

*41 TERRORISM AND THE CONCEPT OF “ARMED ATTACK” IN ARTICLE 51 OF THE U.N. CHARTER

Sean D. Murphy [FNa1]

Copyright (c) 2002 by President and Fellows of Harvard College; Sean D. Murphy

I. INTRODUCTION

On September 11, 2001, nineteen persons of non-U.S. nationality boarded four U.S. commercial passenger jets in
Boston, Washington, and Newark and, once airborne, allegedly hijacked the aircraft and crashed them into the World Trade
Center, the Pentagon, and the Pennsylvania countryside. [FN1] Thereafter, the United States confirmed information that
detailed certain evidence that connected these people to a terrorist group based in Afghanistan (Al Qaeda) and headed by a
Saudi expatriate (Osama bin Laden). [FN2] The United States demanded that the de facto government of Afghanistan (the
Taliban) turn over the leaders of Al Qaeda to the United States, close all terrorist training camps in Afghanistan, and provide
the United States with full access to the camps to confirm their closure. The Taliban declined to do so. [FN3] On October 7,
the United States informed the U.N. Security Council that it was exercising its “inherent right of individual and collective
self-defense” by actions “against Al Qaeda terrorist training camps and military installations of the Taliban regime in
Afghanistan.” [FN4] On the same day, the *42 United States and the United Kingdom launched cruise missiles and long-
range bombers against Al Qaeda and Taliban targets in Afghanistan. [FN5]

The incidents of September 11 and the U.S. response raise several important issues under international law regarding the
use of force. Because the United States asserted that its use of force in Afghanistan constituted a lawful exercise of self-
defense, the first issue becomes whether the requirement in Article 51 of the U.N. Charter that there first be an “armed
attack” against the United States has been met. More specifically, is there an “armed attack” within the meaning of Article 51
when a terrorist organization provides funds and other support to individuals to travel to a country, enabling them to hijack
aircraft of that country's registration, and in turn to crash the aircraft into buildings in that country?

II. BASIC USE OF FORCE NORMS

 As is well known, the core international legal rule relating to the right of a state to resort to armed force—the jus ad
bellum—is embodied in Article 2(4) of the U.N. Charter, which provides:

All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United
Nations. [FN6]
The broad term “use of force”—as opposed to the term “war,” as used in the Kellogg-Briand Pact of 1928 [FN7]—
reflected a desire to prohibit transnational armed conflicts generally, not just conflicts arising from a formal state of war. As
such, Article 2(4) is generally viewed as outlawing any transboundary use of military force, including force justified by
reference to the various doctrines developed in the pre-Charter era of forcible self-help, reprisal, protection of nationals, and
humanitarian intervention. [FN8] To the extent that there is a need to refer to the negotiating history of the U.N. Charter, that
history indicates that Article 2(4) was intended to be a comprehensive *43 prohibition on the use of force by one state against
the other. [FN9] As the International Court of Justice has stated: “Between independent states, respect for territorial
sovereignty is an essential foundation of international relations.” [FN10]

In addition to this prohibition on the use of force, there is an obligation under customary international law not to
intervene in the affairs of another state, including through the use of armed force. In particular, the law on non-intervention
has been shaped since the U.N. Charter by three prominent General Assembly resolutions, which provide that armed
intervention by a state is contrary to the promotion of fundamental human rights and self-determination. One resolution,
entitled the “Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their
Independence and Sovereignty,” provides in relevant part:

1. No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external
affairs of any other State.
2. Consequently, armed intervention and all other forms of interference or attempted threats against the
personality of the State or against its political, economic, and cultural elements are condemned ....
3. The strict observance of these obligations is an essential condition to ensure that nations live together in peace
with one another, since the practice of any form of intervention not only violates the spirit and letter of the Charter of
the United Nations but also leads to the creation of situations which threaten peace and security. [FN11]
*44 There are basically two exceptions in the U.N. Charter to the prohibition on the use of force contained in Article
2(4) and customary rules on non-intervention. First, states may use force when so authorized by the U.N. Security Council
pursuant to its powers under Chapter VII of the Charter. [FN12] While the Security Council passed two resolutions prior to
the U.S. military action against Afghanistan, [FN13] in neither resolution did the Security Council authorize states to use
force against Afghanistan. Second, states may use force in self-defense pursuant to Article 51, which provides:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed
attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense
shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility
of the Security Council under the present Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security. (emphasis added) [FN14]
While there have been spirited debates about the right to engage in “anticipatory self-defense,” most governments and
scholars, [FN15] and the International Court of Justice, [FN16] appear to agree that self-defense is permitted under Article 51
only when there has been an “armed attack.” Yet the type of action that constitutes an “armed attack” has been less studied.
In Nicaragua v. U.S., the International Court of Justice regarded an “armed attack” as occurring when regular armed forces
cross an international border, or when a state sends “armed bands, groups, irregulars or mercenaries which carry out acts of
armed force against another State of such gravity as to amount to” an actual armed attack by regular forces. [FN17] By
contrast, the Court found that “assistance to rebels in the form of the provision of weapons or logistical or other support” did
not constitute an armed attack. Such assistance could be regarded as an unlawful threat or use of force, or intervention in the
internal or external affairs of a state, but not as an “armed attack” against that state. [FN18]

Applying the facts of the case to the law, the Court found that the United States had violated use of force norms [FN19]
by the mining of Nicaraguan ports, *45 the destruction of Nicaraguan oil installations, and the training, arming, and
equipping of Nicaraguan rebels. [FN20] Further, the Court found that the United States was not acting in collective self-
defense (by assisting El Salvador) because the “intermittent flow of arms ... routed via the territory of Nicaragua to the armed
opposition” in El Salvador, even if imputable to the government of Nicaragua, was not “on a scale of any significance;” even
if it were, “the Court is unable to consider that in customary international law, the provision of arms to the opposition in
another State constitutes an armed attack on that State.” [FN21] The Court also found probative the fact that the United States
failed to notify the Security Council that it was exercising a right of collective self-defense. [FN22]

III. WHEN IS A TERRORIST ACT AN “ARMED ATTACK”?

If the Nicaragua Court's decision still stands, then in an analysis under Article 51, one must consider the scale of actions
that might constitute an armed attack. At the low end of the scale (below the “armed attack” threshold) are actions such as the
provision of arms to the nationals of a state who are seeking to overthrow their government. At the high end of the scale
(above the threshold constituting an “armed attack”) are actions such as armies crossing borders, as well as a state sending
armed irregulars who “carry out acts of armed force against another State of such sufficient gravity as to amount to an actual
armed attack by regular forces.” [FN23]

Where do the incidents of September 11 fall on this scale? The argument for placing them on the low end of the scale
might be that the hijackers were not the type of “armed bands, groups, irregulars or mercenaries” that the Nicaragua Court
seemed to have in mind. Rather, they were small groups of persons, who did not in any sense operate as normal military or
paramilitary units, and who were engaged in isolated incidents. [FN24] Further, they apparently were armed with nothing
more than “box cutters” (i.e., Exacto knives), not weapons one would normally associate with military or paramilitary units.
To the extent that we must seek to equate their actions “with an actual armed attack by regular forces,” these persons did not
engage in an armed attack in any conventional sense. Rather, these aliens boarded civilian aircraft in the United States,
hijacked the aircraft, and crashed them in the United States. In short, the argument would be that this was not an “armed
attack” but, rather, a use of force or *46 intervention below the threshold of armed attack, which is perhaps better
characterized as a conventional (albeit heinous) criminal act. There are a series of “terrorist” conventions that regard as
criminal offenses acts that jeopardize safety on board aircraft, [FN25] hijacking of aircraft, [FN26] sabotage of aircraft,
[FN27] and attacks against state or “infrastructure” facilities using explosive devices. [FN28] The purpose of those
conventions is to create procedures for submitting to prosecution an offender and his/her accomplices (as well as those who
organize or direct offenders). In this regard, it is noteworthy that in the aftermath of the September 11 incidents, the General
Assembly condemned the “heinous acts of terrorism,” but neither characterized those acts as “attacks” nor recognized a right
to respond in self-defense. Instead, the General Assembly called for “international cooperation to bring to justice the
perpetrators, organizers and sponsors” of the incidents, a formulation that suggests that the actions were regarded more as
conventional crimes than as an armed attack. [FN29] Finally, the connections of the hijackers with Al Qaeda, and of Al
Qaeda with the unrecognized government of the Taliban, remain somewhat obscure. As such, these incidents clearly were not
taken directly by the government of one state against the United States. Arguably, therefore, the acts are better viewed as
conventional crimes by certain persons, not as a use of force by another state. [FN30]

Prior assertions that terrorist acts constituted an “armed attack” justifying a robust exercise of self-defense have not met
widespread acceptance by the global community. In 1982, Israel invoked a right of self-defense to justify an incursion deep
into Lebanon for purposes of eliminating the ability of the Palestine Liberation Organization (PLO) to conduct terrorist
actions in northern Israel, [FN31] but that justification met with criticism from both the Security Council [FN32] and the
General Assembly. [FN33] In 1985, when Israeli planes *47 bombed PLO headquarters in Tunisia as a response to PLO
terrorist attacks, the Security Council condemned the action by a vote of fourteen to zero (the United States abstained).
[FN34] In 1986, after a bomb exploded in a Berlin dance club frequented by U.S. servicemen, leading to the death of two
Americans and the wounding of several others, the United States claimed a right of self-defense in bombing targets in Libya.
[FN35] Although the General Assembly condemned the U.S. bombing, [FN36] a U.N. Security Council resolution to that
effect failed owing to the negative votes of three of the permanent members (France, the United Kingdom, and the United
States). [FN37]

Yet there is a more convincing argument that the September 11 incidents constituted an “armed attack” against the
United States. First, the scale of the incidents was certainly akin to that of a military attack. The destruction wrought was as
dramatic as the Japanese attack on Pearl Harbor on December 7, 1941: the complete destruction of famous twin towers in the
heart of the United States' financial center and severe damage to the nerve center of the United States' military. Further, the
death toll from the incidents was worse than Pearl Harbor; to find U.S. deaths on the same scale in a single day requires
going back to the U.S. Civil War. The repercussions from the incidents were severe, ranging from intense fear across the
United States, to the temporary halt to all civilian air traffic, to the closure of the New York stock exchange for six days.
Even after it reopened, the U.S. stock market experienced the largest point drop in its history. [FN38]

Second, the United States immediately perceived the incidents as akin to that of a military attack. President Bush
declared a national emergency and called to active duty the reserves of the U.S. armed forces. [FN39] On September 18, the
U.S. Congress adopted a joint resolution authorizing the President to use “all necessary and appropriate force against those
nations, organizations,*48 or persons he determines planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001.” [FN40] In his speech to Congress on September 20, President Bush declared: “On
September 11th, enemies of freedom committed an act of war against our country.” [FN41] As noted above, the United States
reported to the U.N. Security Council that it was the victim of armed attacks by Al Qaeda, which were made possible by the
Taliban, and that the United States was responding in self-defense. [FN42]

Third, the U.S. interpretation of the incidents as an armed attack was largely accepted by other nations. While the two
U.N. Security Council resolutions did not authorize the use of force by the United States, they both affirmed, in the context of
such incidents, the inherent right of individual and collective self-defense and the need “to combat by all means” the “threats
to international peace and security caused by terrorist acts.” [FN43] On September 12, the North Atlantic Council agreed
that, if it could be determined that the incidents were directed from abroad against the United States, “it shall be regarded as
an action covered by Article 5 of the Washington Treaty, which states that an armed attack against one or more of the Allies
in Europe or North America shall be considered an attack against them all.” [FN44] On October 2, after being briefed on the
known facts by the United States, the North Atlantic Council determined that the facts were “clear and compelling,” and “the
attack against the United States on September 11 was directed from abroad and shall therefore be regarded as an action
covered by Article 5 of the Washington Treaty ....” [FN45] Similarly, the Organization of American States meeting of
ministers of foreign affairs resolved:

That these terrorist attacks against the United States of America are attacks against all American states and that in
accordance with all the relevant provisions of the Inter-American Treaty of Reciprocal Assistance (Rio Treaty) and the
principal of continental solidarity, all States Parties to the Rio Treaty shall provide effective reciprocal assistance to
address such attacks and the threat of any similar attacks against any American state, and to maintain the peace and
security of the continent. [FN46]
*49 When the United States finally embarked on its bombing campaign in Afghanistan, it received support from various
quarters that this action was an appropriate exercise of the right of self-defense against an armed attack. The United Kingdom
itself directly participated in air strikes against Afghanistan, and access to airspace and facilities was provided not just by
NATO allies, [FN47] but also by nations such as Georgia, Oman, Pakistan, Qatar, Saudi Arabia, Turkey, and Uzbekistan.
[FN48] Other leading nations, such as China, [FN49] Egypt, [FN50] and Russia, [FN51] announced support for the U.S.
campaign. The fifty-six nations of the Organization for the Islamic Conference called upon the United States not to extend its
military response beyond Afghanistan, but made no criticism of military actions against Afghanistan. [FN52]

Fourth, there is no need to view the September 11 incidents as presenting a binary choice between being regarded either
as a criminal act or as a use of force amounting to an armed attack. In fact, the incidents can properly be characterized as
both a criminal act and an armed attack. At least since the establishment of the Nuremberg Tribunal, and certainly under
contemporary standards of international law, an act of aggression and a crime against humanity can be viewed both as
criminal acts entailing individual responsibility and as violations of use of force and human rights norms implicating state
responsibility. [FN53]

Fifth, there is some prior state practice supporting the view that terrorist bombings can constitute an armed attack
triggering a right of self-defense. In 1998, after Al Qaeda sponsored bombings of U.S. embassies in Nairobi, Kenya, and Dar
es Salaam, Tanzania, killing nearly 300 people (including twelve Americans), the United States invoked its right of self-
defense and launched cruise missiles against training camps in Afghanistan and against a Sudanese pharmaceutical plant
allegedly serving as a chemical weapons facility. While some states condemned the attacks, others supported them. Neither
the General Assembly nor the Security Council condemned the attacks. The League of Arab States condemned the attack on
the Sudan, but *50 was silent regarding the attack on Afghanistan. [FN54] As compared with the incidents discussed above
from the 1980s, the global reaction was decidedly muted.

Finally, the fact that the incidents were not undertaken directly by a foreign government cannot be viewed as
disqualifying them from constituting an “armed attack.” There is nothing in Article 51 of the U.N. Charter that requires the
exercise of self-defense to turn on whether an armed attack was committed directly by another state. Indeed, the language
used in Article 2(4) (which speaks of a use of force by one “Member” against “any state”) is not repeated in Article 51.
Rather, Article 51 is silent on who or what might commit an armed attack justifying self-defense. The preeminent precedent
regarding self-defense—the 1837 Caroline incident—stands not just for Secretary of State Webster's proposition that self-
defense is only appropriate in cases of necessity (“instant, overwhelming, leaving no choice of means, and no moment for
deliberation”), [FN55] but also for the proposition that self-defense is permissible as a reaction to attacks by non-
governmental entities (in that case, support by U.S. nationals for a rebellion in Canada). [FN56] To the extent that Article 51
preserves an inherent right of self-defense, that right prior to the adoption of the U.N. Charter included the right to respond to
attacks from wherever they may come. [FN57] Moreover, assuming that a close connection between Al Qaeda and the
Taliban does exist, and given the Taliban's refusal to surrender bin Laden even in the aftermath of his indictment for the
bombings of U.S. embassies in East Africa, it is not difficult to make a respectable argument that the incidents of September
11 are imputable to the de facto government of Afghanistan. In this regard, the recent, provisionally adopted articles on state
responsibility by the International Law Commission provide a framework for analysis. [FN58] Depending on the facts, one
might find the de facto government responsible because of the omissions of its organs or officials in allowing Al Qaeda to
operate from Afghanistan even after its known involvement in terrorist acts prior to the September 11 incidents (Articles 2, 4-
5), because the de facto government by default essentially allowed Al Qaeda to exercise governmental functions in projecting
force abroad (Article 9), or because after the September 11 incidents*51 the de facto government declined to extradite Al
Qaeda operatives and thus, in effect, adopted Al Qaeda's conduct as its own (Article 11). As Michael Reisman has eloquently
stated, “[s]tate-sponsored terrorism is the most noxious and dangerous of its species, yet its authors and architects evade all
deterrence and prospect of punishment if the fiction is that states are not involved and only their agents are deemed
responsible for the terrorism.” [FN59]

IV. CONCLUSION

On balance, viewing the September 11 incidents as constituting an armed attack is fully consistent with the animating
principle of Article 51, which was to allow states to exercise an inherent right to respond to acts that strike at the heart of a
state's national security. While the notion of “armed attack” in 1945 no doubt was closely associated with the idea of armies
crossing borders, the Nicaragua Court recognized in the 1980s that an armed attack could arise in other ways, such as the
sending of armed groups into a state. Today, our appreciation of these non-traditional means of engaging in an armed attack
must also comprehend the pernicious methods of terrorist organizations.

However, the standards embodied in the Nicaragua Court's scale remain obscure and will need to develop over time
through state practice and judicial review.

In the aftermath of the September 11 incidents, the release of bacterial agents potentially by a foreign terrorist
organization has resulted in fewer immediate deaths and less property damage than the September 11 incidents, but has
disrupted the functioning of the U.S. government, fueled fear across the United States, and perhaps over time will cause
many more deaths than it already has. Can the United States possibly be expected not to respond to the source of such actions
through resort to proportionate military force? While the desire to minimize the transboundary use of military force is central
to contemporary world order, international rules that preclude a state from responding forcibly to extraordinary threats to its
fundamental security interests—indeed, perhaps when “the very survival of a State would be at stake” [FN60]—are destined
not to endure.

[FNa1]. Associate Professor, George Washington University

[FN1]. See Michael Grunwald, Terrorists Hijack 4 Airliners, Destroy World Trade Center, Hit Pentagon; Hundreds Dead,
WASH. POST, Sept. 12, 2001, at A1; David Firestone & Dana Canedy, F.B.I. Documents Detail the Movements of 19 Men
Believed to Be Hijackers, N.Y. TIMES, Sept. 15, 2001, at A3.

[FN2]. See Press Release, 10 Downing Street Newsroom, Responsibility for the Terrorist Atrocities in the United States (Oct.
4, 2001), http://www.number-10.gov.uk/news.asp?NewsId=2686; David E. Sanger, White House Approved Data Blair
Released, N.Y. TIMES, Oct. 6, 2001, at B6.

[FN3]. Although the United States did not recognize the Taliban regime as the government of Afghanistan, and therefore had
no diplomatic relations with the Taliban, the U.S. demands and the Taliban's rejection of those demands were communicated
through the government of Pakistan. See Rajiv Chandrasekaran, Taliban Refuses to Surrender bin Laden: U.S. Develops
Options for Military Action, WASH. POST, Sept. 19, 2001, at A1. Further, President Bush issued the demands in a widely
reported speech to a joint session of the U.S. Congress. See President George W. Bush, Address to a Joint Session of
Congress and the American People, Washington, D.C. (Sept. 20, 2001), http://
www.whitehouse.gov/news/releases/2001/09/20010920-8.html [hereinafter Address to a Joint Session]. Se also John F.
Harris & Mike Allen, President Details Global War On Terrorists and Supporters, WASH. POST, Sept. 21, 2001, at A1.

[FN4]. Letter from the Permanent U.N. Representative of the United States to the President of the U.N. Security Council
(Oct. 7, 2001), U.N. Doc. S/2001/946 (Oct. 7, 2001) [hereinafter U.S. Letter] (noting that it had been the victim of “massive
and brutal attacks” that were “specifically designed to maximize the loss of life; [resulting] in the death of more than 5,000
persons, including nationals of 81 countries, as well as the destruction of four civilian aircraft, the World Trade Center towers
and a section of the Pentagon”).

[FN5]. See Patrick E. Tyler, U.S. and Britain Strike Afghanistan, Aiming at Bases and Terrorist Camps: Bush Warns
“Taliban Will Pay a Price,” N.Y. TIMES, Oct. 8, 2001, at A1.

[FN6]. U.N. CHARTER art. 2, para. 4

[FN7]. See Treaty Between the United States and Other Powers Providing for the Renunciation of War as an Instrument of
National Policy, Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57. Article 1 of the Pact provides: “The High Contracting Parties
solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international
controversies, and renounce it as an instrument of national policy in their relations with one another.”

[FN8]. See IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 361-63 (1963). For a
discussion of the historical development of the use of force doctrine, see HENRY WHEATON, ELEMENTS OF
INTERNATIONAL LAW § 290 (G. Wilson ed., Carnegie 1936) (1836).

[FN9]. See THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 117-18 (Bruno Simma ed., 1994); LA
CHARTE DES NATIONS UNIES: COMMENTAIRE ARTICLE PAR ARTICLE 125 (J. Cot & A. Pellet eds., 2d ed. 1991)
(arguing, however, that actions that have humanitarian goals, or the goal of saving the lives of a state's nationals in danger
abroad may be legitimate); LELAND GOODRICH ET AL., CHARTER OF THE UNITED NATIONS: COMMENTARY
AND DOCUMENTS 44-45 (3d ed. 1969); C. Humphrey Waldock, The Regulation of the Use of Force by Individual States
in International Law, 81 RECUEIL DES COURS 451, 493 (1952) (noting, however, that Article 2(4) leaves open the
possibility for military actions “not calculated to impair territorial integrity or political independence”); BROWNLIE, supra
note 8, at 112-13; OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE, 112-13 (1991)
(discussing, however, six exceptions to the comprehensive prohibition on use of force).

[FN10]. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 35 (Apr. 9).

[FN11]. G.A. Res. 2131, U.N. GAOR, 20th Sess., Supp. No. 14, at 11, U.N. Doc. A/6014 (1966). The second resolution, to
which was annexed a “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation
Among State in Accordance with the Charter of the United Nations,” provides in part:
No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the
internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or
attempted threats against the personality of the State or against its political, economic, and cultural elements are in
violation of international law.

G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, Annex, at 121, U.N. Doc. A/8028 (1971). The third resolution,
entitled “Definition of Aggression,” enumerates various acts that constitute “aggression,” including the “invasion or attack by
the armed forces of a State of the territory of another State.” G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, Annex,
at 142, U.N. Doc. A/9631 (1975) [hereinafter U.N. Definition of Aggression].
[FN12]. U.N. CHARTER ch. VII.

[FN13]. S.C. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg., U.N. Doc. S/RES/1368 (2001) [hereinafter S.C. Res. 1368];
S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., U.N. Doc. S/RES/1373 (2001) [hereinafter S.C. Res. 1373].

[FN14]. U.N. CHARTER art. 51.

[FN15]. See SCHACHTER, supra note 9, at 150.

[FN16]. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 103, 110 (June 27).

[FN17]. Id. at 103 (quoting from the U.N. Definition of Aggression, supra note 11).

[FN18]. Id.

[FN19]. Due to a reservation contained in the U.S. acceptance of the Court's jurisdiction, the Court technically was not
passing upon U.S. obligations under the U.N. Charter, but rather on customary international law. For all intents and purposes,
however, the Court's decision is regarded as reflecting its views on the use of force under the Charter as well.

[FN20]. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 118 (June 27).

[FN21]. Id. at 119.

[FN22]. Id. at 121.

[FN23]. Id. at 103.

[FN24]. See LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 126 (1995) (“It is difficult to make an
‘armed attack’ out of a limited, isolated terrorist attack or even a few sporadic ones. It is difficult to accept a general bombing
as a ‘necessary’ and ‘proportional’ response to a terrorist attack. It is difficult to justify such a response if one balances
competing state values or even competing human values.”).

[FN25]. See Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 U.S.T.
2941, 704 U.N.T.S. 219.

[FN26]. See Hague Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641, 10
I.L.M. 133.

[FN27]. See Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971,
24 U.S.T. 565, 974 U.N.T.S. 177.

[FN28]. International Convention for the Suppression of Terrorist Bombings, Jan. 9, 1998, S. TREATY DOC. NO. 106-6, 37
I.L.M. 251 [hereinafter Terrorist Bombing Convention].

[FN29]. G.A. Res. 1, U.N. GAOR, 56th Sess., 1st plen. mtg., Agenda Item 8 ¶ 3, U.N. Doc. A/RES/56/1 (2001).

[FN30]. See Giorgio Gaja, In What Sense Was There an “Armed Attack”?, European Journal of International Law Discussion
Forum, The Attack on the World Trade Center: Legal Responses, http://www.ejil.org/forum_WTC/ny-gaja.html.

[FN31]. See Yehuda Blum, Permanent Representative of Israel to the United Nations, Speech before the Security Council,
U.N. SCOR, 36th Sess., Supp. 21, U.N. Doc. S/PV.2292 (1981). See also Barry Levenfeld, Israeli Counter-Fedayeen Tactics
in Lebanon: Self-Defense and Reprisal Under Modern International Law, 21 COLUM. J. TRANSNAT'L L. 1, 5 (1982);
Barry Feinstein, The Legality of the Use of Armed Force by Israel in Lebanon, 20 ISRAEL L. REV. 362, 382 (1985).

[FN32]. See S.C. Res. 508, U.N. SCOR, 37th Sess., 2374th mtg., U.N. Doc. S/RES/508 (1982); S.C. Res. 509, U.N. SCOR,
37th Sess., 2375th mtg., U.N. Doc. S/RES/509 (1982); S.C. Res. 517, U.N. SCOR, 37th Sess., 2389th mtg., U.N. Doc.
S/RES/517 (1982).

[FN33]. See G.A. Res. ES 7/9, U.N. GAOR, 7th Emer. Spec. Sess., 32nd mtg., Agenda Item 5, U.N. Doc. A/ES-7/L.8 (1982).

[FN34]. See S.C. Res. 573, U.N. SCOR, 40th Sess., 2615th mtg., U.N. Doc. S/RES/573 (1985).

[FN35]. See Marian Nash Leich, Contemporary Practice of the United States Relating to International Law , 80 AM. J. INT'L
L. 612, 633-36 (1986); Gregory Francis Intoccia, American Bombing of Libya: An International Legal Analysis , 19 CASE W.
RES. J. INT'L L. 177 (1987).

[FN36]. See G.A. Res. 38, U.N. GAOR, 41st Sess., Supp. No. 53, at 34, U.N. Doc. A/RES/41/53 (1986).

[FN37]. See 1986 U.N.Y.B. 253-54, U.N. Sales No. E.90.I.1 (1986). A possible counter-example to this practice might be the
muted global reaction to the June 1993 cruise missile attack against Iraq, which the United States undertook in response to an
Iraqi-backed attempt to assassinate former President George Bush during his visit to Kuwait in April 1993. See Stuart G.
Baker, Note, Comparing the 1993 U.S. Airstrike on Iraq to the 1986 Bombing of Libya: The New Interpretation of Article 51,
24 GA. J. INT'L & COMP. L. 99 (1994). However, the extensive global intrusion into Iraqi sovereignty after its 1990
invasion of Kuwait, including the deployment of U.N. peacekeepers in Iraqi territory along its border with Kuwait, the
establishment of “no-fly zones” in northern and southern Iraq, and ultimately the launching of missile strikes against Iraq for
the failure to comply with the U.N. weapons-inspection regime warrants caution in viewing the global reaction to the 1993
airstrike as reflecting a general shift in attitudes about use of force norms. See Sean D. Murphy, Contemporary Practice of
the United States Relating to International Law, 93 AM. J. INT'L L. 471 (1999).

[FN38]. See Paul Blustein & Carol Vinzant, Stocks Plummet as Wall Street Reopens, WASH. POST, Sept. 18, 2001, at A1.

[FN39]. See Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sept. 18, 2001); Exec. Order No. 13,223, 66 Fed. Reg. 48,201
(Sept. 18, 2001).

[FN40]. Authorization for Use of Military Force, S.J. Res. 23, 107th Cong., 115 Stat. 224 (2001).

[FN41]. See Address to a Joint Session, supra note 3.

[FN42]. See U.S. Letter, supra note 4.

[FN43]. S.C. Res. 1368, supra note 13, pmbl.; S.C. Res. 1373, supra note 13, pmbl.

[FN44]. NATO Press Release No. 124, Statement by the North Atlantic Council (Sept. 12, 2001),
http://www.nato.int/docu/pr/2001/p01-124e.htm.

[FN45]. Secretary General Lord Robertson, Statement at NATO Headquarters (Oct. 2, 2001),
http://www.nato.int/docu/speech/2001/s011002a.htm.

[FN46]. Terrorist Threat to the Americas, Res. 1, Twenty-Fourth Meeting of Consultation of Ministers of Foreign Affairs
Acting as Organ of Consultation In Application of the Inter-American Treaty of Reciprocal Assistance, OEA/Ser.F/II.24,
RC.24/RES.1/01 (Sept. 21, 2001).

[FN47]. See William Drozdiak & Doug Struck, NATO Allies Offer Help for U.S. Military Action, WASH. POST, Oct. 5,
2001, at A26.

[FN48]. See Elaine Sciolino & Steven Lee Myers, Bush Says “Time is Running Out”; U.S. Plans to Act Largely Alone, N.Y.
TIMES, Oct. 7, 2001, at A1; Alan Sipress, Emir Pledges Qatar's Support but Offers Words of Caution, WASH. POST, Oct.
5, 2001, at A23; Mark Landler, Philippines Offers U.S. Its Troops And Bases, N.Y. TIMES, Oct. 3, 2001, at A5.

[FN49]. See Erik Eckholm, China's About-Face: Support for U.S. on Terror, N.Y. TIMES, Sept. 30, 2001, at A6.

[FN50]. Daniel Williams, Mubarak Backs Strikes by U.S. on Afghanistan, WASH. POST, Oct. 10, 2001, at A17.

[FN51]. See Sharon LaFraniere, Putin Gives U.S. Attacks A Strong Endorsement, WASH. POST, Oct. 9, 2001, at A16.

[FN52]. Daniel Williams, Islamic Group Offers U.S. Mild Rebuke, WASH. POST, Oct. 11, 2001, at A21.
[FN53]. This Essay does not address whether for policy reasons it would be preferable to pursue the incidents as criminal acts
or as armed attacks requiring a forcible response; nor does it address the fact that ultimately the United States may end up
foreclosing one avenue by pursuing the other (e.g., military targeting may kill the persons who would otherwise be
prosecuted).

[FN54]. See Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 AM. J. INT'L L.
161, 164-65 (1999).

[FN55]. See R.Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT'L L. 82, 89 (1938) (quoting 61
PARLIAMENTARY PAPERS (1843); 30 BRITISH & FOREIGN STATE PAPERS 193 (1843)).

[FN56]. Id. at 82-88.

[FN57]. Addressing the customary international law constraints relating to necessity and proportionality is outside the scope
of this Essay. However, those constraints would require first providing an opportunity to the government hosting a terrorist
organization to take the necessary steps to remove the threat, and would preclude self-defense measures against the military
and police forces of a hapless government that is simply incapable of preventing a terrorist group from operating from its
soil. In such a circumstance, the defensive measures must only target the terrorist group.

[FN58]. See International Law Commission, Report on the Work of Its Fifty-Second Session, May 1-June 9, July 1-Aug. 18,
2000, U.N. GAOR, 52d Sess., Supp. No. 10, at 124, U.N. Doc. A/55/10 (2000).

[FN59]. W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. INT'L L. 3, 39 (1999) ; see Luigi
Condorelli, The Imputability to States of Acts of International Terrorism, 19 ISRAEL Y.B. H.R. 233 (1989); YORAM
DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENSE 182-83 (3d ed. 2001) (“[A]n armed attack is not extenuated by
the subterfuge of indirect aggression or by reliance on a surrogate. There is no real difference between the activation of a
country's regular armed forces and a military operation carried out at one remove, pulling the strings of a terrorist
organization (not formally associated with the governmental apparatus.”).

[FN60]. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 266 (July 8).

43 Harv. Int'l L.J. 41

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