War crimes by US troops

[Narsil]

"Adolf who?" indeed. I guess I shouldn't be surprised that you're ignoring that, since you seem to have a pro-fascist (or anti-anti-fascist) mindset.

You'll find that Adolf Hitler didn't actually have the manpower to wage his infamous war to its logical conclusion. And on top of that; it was damn near impossible to invade the UK under any logical circumstances. And as far as 'American imperialism' goes... the USA was not imperialist during that point in history, the USA's imperialism and tendency towards atrocity was first rearing its ugly head with Hiroshima, but it wasn't truly there yet.

So were murding journalists now? Wow! So who did we kill, I'm curious.

Terry Lloyd

I'll give you one free pass 'cause you're new here and don't know me. Don't do that again.

I'm afraid my friend Batman has an unfortunate habit of telling the truth as he sees it. World's greatest detective seems to have a habit of stating the obvious.

[2046]

International law don't knows "War against Terror".
War is an international affair.
But a terror organisation like al-Qaida is no international legal personality. It's is according to the law of nations impossible to wage a war against it.

That's a pleasant but fallacious way to claim the GWoT is illegal.

Semantic gamesmanship aside, the principle of global censure and use of all means available against terror groups is contained in UN resolutions, including 1368 which you quote. 1373 which you also quote reaffirms 1368, reaffirms the inherent right of individual or collective self-defense, and reaffirms the Charter, in which the very preamble declares that force is an option for the common interest.

The 9/11 was a crime - a dreadful and shocking crime - but nevertheless only a crime.

It was no casus belli.

My ass. Seriously, when did attacks upon a sovereign nations soil become not-casus-belli? If you want to play games with words and say that 9/11 was just a "crime" because Al Qaeda has no national boundary, then fine . . . 9/11 made us the most pissed-off cops the world has ever seen.

Of course Afghanistan was harboring and supporting Al Qaeda, so then it was a military thing. But the GWoT would still qualify, your semantics games notwithstanding.

As for Iraq, your own link refers to the notion that the only modern just causes for war are self-defense and via UN Resolution. The Iraq War was both.

To attack Afghanistan was a violation of international laws.

WHAT?!?

And it was unnecessary.

WHAT?!?

But the U.S. have wanted the unconditional extradition - without giving any proof that he was responsible for 9/11.

His extradition was already required for 1998, but the Taliban refused then too, claiming that no evidence had been provided. We provided it in August, they ignored it. They thought they could thumb our nose at us, since all Clinton did was send some cruise missiles.

That's the real trick of Bush . . . the terrorists had gotten used to a soft United States. Oh, we might send a few cruise missiles, like a kid hurling insults on the playground after getting a bloody nose, but nothing more than that.

Ah, but this time they started to shit 'cause we went to full ass-kick mode.

But I digress . . . the Taliban, a non-recognized government of Afghanistan, had previously refused to extradite bin Laden despite evidence. Why expect something different on this occasion?

Article 3 European Convention on Human Rights

"European"? Is this in the UN? Are we signatories?

More to the point, do I give a shit in regards to known terrorists? No, as a matter of fact I don't. In fact, I give less than a shit. Indeed, calculations suggest I give negative shit. I daresay I'd have to eat shit in order to be able to care one iota on the matter. But then I'd be full of shit and my opinion wouldn't be of consequence anyway.

Seriously, Wilga, it's starting to look like you and I have no common ground whatsoever on which to discuss this issue.

Frankly, I don't even know what planet you're from right now.

Afghanistan harbored and aided a group responsible for 9/11. There is no doubt of this. By standing with the target, they made themselves a target.

Even if, by some wild stretch of the imagination, your interpretation of UN phrasings were accurate, it would only mean that the law was wrong, and that if we are outlaws, we're outlaws in the right.

If you can't understand that or won't agree to it, then that's your problem. Taliban rule of Afghanistan and its harboring of Al Qaeda is now something relegated to history, as it should be. Destroying the Taliban was justified by any code of ethics or set of laws worth its salt. If it was not justified in yours, then check your premises . . . you've got something horribly wrong.

[2046]

You'll find that Adolf Hitler didn't actually have the manpower to wage his infamous war to its logical conclusion.

Funny . . . Churchill didn't seem to think so. We'll try to remember that you'll downplay things next time you're asking for help.

And on top of that; it was damn near impossible to invade the UK under any logical circumstances.

Ah, so now Churchill was a buffoon? Excellent.

And as far as 'American imperialism' goes... the USA was not imperialist during that point in history, the USA's imperialism and tendency towards atrocity was first rearing its ugly head with Hiroshima, but it wasn't truly there yet.

Ah, and now Hiroshima was an evil American atrocity! Good heavens, what a horrifying place your mind must be. Tell me, do you like Che Guevara?

But I digress. I'm sure you're well aware of the fact that lives on both sides were saved from a protracted invasion, though of course at that moment in history we were far more concerned with our own. In fact, I won't repeat all the arguments with you. Hiroshima and Nagasaki were perfectly ethical and flawless in every way, though Nagasaki was a bit of a misdrop and so got contained by the terrain. Oh well. It made the point.

Given the opportunity and a time machine, I'd drop the bombs again myself. And I'd be damn happy to do it, smoking a cigar and having a swig of Gentleman Jack afterward, laughing in your face.

I am, generally speaking, very much against war. War is very ugly business. But when war is thrust upon us, I'll be damned if a bunch of wrong-headed faux moralizing will carry any weight with me.

So were murding journalists now? Wow! So who did we kill, I'm curious.

Terry Lloyd

Don't give me this crap.

There were four guys. They had two press-marked vehicles, running in convoy with Baathist leaders during the invasion.

Two of the guys got into an Iraqi (at this point the badguys) vehicle, leaving their marked one behind.

The Americans attacked the convoy. Reporters in a reporter-mobile are not human shields. We attacked the armed truck. The remaining marked car with Lloyd in it got hit by Iraqi fire, per your own link.

In the smoky conditions, Lloyd got into a civilian minibus that was helping Baathists escape. This vehicle was fired on. Lloyd died.

And that, in your mind, is murder? Journalists in war get into some shit. Sometimes they live through it, sometimes they don't. Lloyd didn't. I feel for his family, but it's war. People die, especially when they're running with the wrong guys.

I'll give you one free pass 'cause you're new here and don't know me. Don't do that again.

World's greatest detective seems to have a habit of stating the obvious.

Ah, so you call me a liar for disagreeing with you as well? I see that your capacity for logic is as poor, and your criteria for lying as unfounded, as your political opinions.

[Mr. Oragahn]

What were the proofs, in fact, that Al Quaeda was behind those attacks, exactly?
Between the fatty Bin Laden and the terrorists who died in the planet but didn't die... and were not islamic nuts by the slightest margin...

[Who is like God arbour]

There is an article in which a legal opinion is presented, which is similar to my own legal opinion, I have made 2001.

To be honest - this legal opinion - although in its entirety exhaustive - is a little bit soft in its conclusion. I would have used more clearly words. But that is a plublication in a distinguished Journal and I can understand that one has to be a little bit considerate.

But the advantage of these legal opinion is that it is already in English. That's why I post it.

I recommend that you read it and try to understand it.

• • • The Right of Self-Defence and The "War on Terrorism" One Year after September 11
      By Kirsten Schmalenbach
      
      SPECIAL FORUM ISSUE: THE WORLD WE (INTERNATIONAL LAWYERS) ARE IN: LAW AND POLITICS ONE YEAR AFTER 9/11.
      
      
      
      A. Introduction: International Terrorism
      
      [1]
      The destruction of the World Trade Center and a wing of the Pentagon by three highjacked civilian airliners and the crash of a fourth in Pennsylvania on September 11, 2001 constitute without a doubt the high point of terrorist attacks on the United States to date. The terrorists' methods, their destructive force and the attacks' economic and political effects are all without precedent. After September 11, the organisation responsible was quickly identified, namely a terrorist group based in Afghanistan, Al Qaeda, headed by a Saudi expatriate, Osama bin Laden. After a request for his extradition was denied by the ruling Taliban, the United States and the United Kingdom conducted airstrikes against targets in Afghanistan beginning on October 7. As soon as late November 2001, the Taliban's fate was sealed. The uninterrupted bombardment of the US Air Force helped the Northern Alliance gain decisive ground in its campaign against the regime. On December 15, 2001, the various Afghan opposition groups signed a treaty on the Petersberg near Bonn, Germany, that established an interim government. The government's establishment put an end to the Taliban's rule, but it did not put an end to international terrorism with its various goals and interwoven structures.
      
      [2]
      While the attacks of September 11 may in some respects be exceptional, as an incident of international terrorism per se they are the latest in a long series. (1) The previous engagement of the United States in the Middle East had already led to the targeting of US institutions and citizens by terrorists. In 1986, a bomb exploded in a West Berlin night-club that predominantly catered to US soldiers. Citing the right of self-defence, the United States reacted with airstrikes on the Libyan capital, Tripoli. On December 21, 1988, the destruction of a PanAm flight over the Scottish town of Lockerbie resulted in the deaths of 259 passengers and 11 inhabitants. The suspects, two Libyan citizens, were tried under United Nations (UN) supervision in the Netherlands before a Scottish court. (2) The Lockerbie case is a well known but rare example of international co-operation in the non-violent fight against international terrorism.
      
      [3]
      The military operation to free Kuwait in 1990 by a US-led alliance resulted in further terrorist attacks, including an assassination attempt on former US President George Bush Sr. in 1993 in Kuwait. The United States again relied on its right to self-defence and conducted airstrikes against the Iraqi Secret Service's headquarters in Baghdad. (3) The continued presence of US soldiers near Islam's holy sites led to the perception by Muslim fundamentalists of the United States as the chief enemy of Islam. The US embassies in Kenya and Tanzania in August 1998 were the next target of attacks, which killed 254 people and injured well over 5000. Their bombing also served to introduce bin Laden (multi-millionaire and fundamentalist on a private mission) as the public face of international terrorism. The US reaction was in keeping with its past practice. On August 20, 1998, US cruise missiles destroyed six alleged bases of bin Laden in Afghanistan and a pharmaceutical factory in Sudan. (4) In these cases, as in the previous ones, the United States justified its armed intervention as an act of self-defence. (5)
      
      
      
      B. The Traditional Concepts of "Use of Force" and "Self-Defence" in International Law
      
      [4]
      The use of force by the United States in response to terrorist attacks prior to and including September 11, 2001 is primarily subject to the norms of international law. A state attacked by terrorists may politically be in an extraordinary position yet its selection of countermeasures is not outside the law. In such a situation, national law usually proves capable of prompt and flexible reactions. In comparison, the norms of international law are relatively static. The prohibition of the use of force in international relations with its limited exceptions serves as a telling example.
      
      [5]
      Since at least the founding of the United Nations in 1945, the international legal system has been dominated by an explicit prohibition of the use of force, namely Article 2[4] UN Charter. This central norm of the UN Charter and its equivalent in customary international law strictly prohibits states from using force of a military nature, even if the government of a state has not been internationally recognized, as was the case with Afghanistan. This interpretation of Article 2[4] UN Charter is undisputed; the controversy concerns the exceptions, specifically the circumstances in which the right of self-defence according to Article 51 UN Charter may be exercised.
      
      [6]
      Self-defence per Article 51 UN Charter, which is emphasised as an "inherent right", requires an armed attack upon a state. Three constitutive elements of the term "armed attack" present difficulties in characterising the use of force as self-defence in accordance with international law, especially in response to terrorism. Self-defence against a terrorist attack requires, according to the traditional concept of Article 51 UN Charter, that the terrorist attack be carried out as an ‘act of a state', which means that it must be attributable to a state. (6) In addition, the attack in question has to be comparable to inter-state combat in its scale and effects. Lastly, Article 51 UN Charter requires that the armed attack has not ended but is ongoing when the right of self-defence is exercised.
      
      [7]
      Even if Article 51 UN-Charter does not explicitly limit self-defence to armed attacks by a state, this reading is supported by the UN Charter's concept and the law of nations in general. (7) In the context of Article 2[4] UN Charter, self-defence is an exception to the prohibition of the use of force in inter-state relations. A state is allowed to rely on self-defence if it is affected by another state's unlawful use of force. The crucial point in the context of Article 51 UN Charter is that defence measures of an attacked state affects, in the majority of cases, the territorial integrity of another state. If a state is attacked by private individuals located on the high seas or in a plane above the high seas, the attacked state has the right to launch armed countermeasures without being in danger of conflicting with Article 2[4] UN Charter. In this case, the attacked state can rely on its unlimited sovereignty; recourse to Article 51 is not required. However, there might be a scenario which calls for a different legal perspective. If terrorists are based in a territory without effective governance (failed state), state practice may support the application of Article 51 UN Charter in favour of the attacked state. This means of course that a failed state is in principle under the protection of Article 2[4] UN Charter. Yet, Afghanistan was far from lacking governmental authority. The Taliban had ruled 90 % of the territory in a very effective manner; therefore it cannot be categorised as a failed state. Consequently, the right of self-defence on the grounds of Article 51 UN Charter required an armed attack against the United States attributable to Afghanistan.
      
      [8] With regard to the attribution of acts and omissions to a state, international law possesses relatively stable rules. The basic rule is that the conduct of state organs acting in their official capacity is attributed to the state concerned. Organs of the state comprise all persons who fulfil legislative, executive or judicial functions within the state. (9) Difficulty in determining the attributability of conduct begins with persons lacking formal appointment who act in some connection with the state. Here the concept of the "de facto organ" enters the scenario. The de facto organ is characterised in draft article 8 on state responsibility (2001) as a person "… in fact acting on the instructions of, or under the direction or control of, that state in carrying out the conduct." (10)
      
      [9]
      As noted in draft article 8 on state responsibility (2001), the key elements of attribution are instruction, direction and control. Explicit or implied instruction between the militant occupants of the US embassy in Tehran and the Iranian government was lacking, according to the International Court of Justice (ICJ) in the case "United States Diplomatic and Consular Staff in Tehran". (11) The ICJ refined its criteria for attribution in 1986 in the Nicaragua case. The Court underlined the importance of the element of effective state control of the specific paramilitary operation in the course of which the alleged violation of international law was committed. (12) The Nicaragua judgement's high threshold for the attribution of the conduct of paramilitary groups was in turn criticised by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in its Tadic judgement of July 15, 1999. (13) Citing statements by the US-Mexican Claims Commission (14), the Iran-United States Claims Tribunal (15) and the European Court of Human Rights (16), the Yugoslavia Tribunal noted that international law does not require the same degree of state control in order for individuals to qualify as de facto organs. "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by co-ordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group." (17) In contrast, where a state merely acknowledges the factual existence of a private individual's conduct or condones that conduct, the attribution of that conduct to the state has no basis in traditional international law. (18)
      
      [10]
      The second requirement of Article 51 UN Charter concerns the scale and effects of the armed attack. Even if Article 51 UN Charter does not explicitly state that the attack in question must be of a certain intensity for it to qualify as an armed attack, the criteria "scale" and "effects" are largely undisputed. The corresponding international practice is reflected in the UN General Assembly's Definition of Aggression of December 14, 1974. (19) Article 3(g) of the relevant resolution states that "[a]ny of the following acts, regardless of a declaration of war, shall (...) qualify as an act of aggression: (...) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein." The General Assembly's definition is substantively related to Article 39 UN Charter and was cited by the ICJ in the Nicaragua case in its interpretation of the right of self-defence. The judgement reads: "The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces." (20) The discretion offered by the requirement of scale and effects can pose a serious problem in deciding on a military response to acts of terrorism. How many victims must suffer in the terrorist attack, and how many terrorists must take part in order for the attack to be comparable to an attack by regular armed forces?
      
      [11]
      Lastly, the requirement of immediacy between armed attack and force used in self-defence can be founded on the wording of Article 51 UN Charter ("if an armed attack occurs"). If an attack has ceased and there is no danger of further attack, the right of self-defence itself ceases. (21) Repressive measures by military means are generally prohibited in international relations. (22) The "Friendly Relations Declaration" adopted by consensus by the General Assembly in 1970 reads: "States have a duty to refrain from acts of reprisal involving the use of force." (23) If, however, the attack in question consists of several successive acts, the requirement of immediacy becomes problematic and would have to be judged on a case-by-case basis. (24) ‘Hit-and-run' terrorist attacks, in which the terrorists wait for a period of time before striking again, are a favourite tactic of Al Qaeda: three years passed between the attacks on the US embassies in Nairobi and Dar es Salaam and the attacks on the World Trade Center and the Pentagon.
      
      
      
      C. Combating the Taliban Regime in Afghanistan
      
      [12]
      After September 11 and before targeting Afghanistan, the United States cited its right to self-defence in justifying its military actions to the community of states and the UN. This is especially noteworthy since the UN Security Council (SC) had apparently been willing to permit the use of force on the basis of Chapter VII of the UN Charter: "The Security Council (...) expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations." (25) In the event, the United States decided against taking up this offer, opting instead for its right to self-defence. There may be various reasons for this decision. First, a SC mandate that in time and content would have limited the US's freedom of action could thereby be avoided. (26) Moreover, reliance on Article 51 UN Charter is consistent with past US counter-terrorism policy, though this policy did in the case of September 11 meet with the approval of the community of states and the UN. In both Resolution 1368 and Resolution 1373 concerning the September 11 attacks, the SC recognised that there is an "inherent right of individual or collective self-defence in accordance with the Charter." (27)
      
      [13]
      The legal significance of the passage cited, which was without a doubt included in the SC-Resolutions at the request of the United States, is limited. The right of self-defence is an original right of states that has neither been granted nor limited by the UN ("inherent right"). The SC does not therefore have the competence to grant a constitutive right of self-defence to any state. (28) Nevertheless, mention of the right of self-defence by the SC is not completely insignificant. It declares that an armed attack by the United States on Afghanistan – the base of bin Laden and his organisation – does not violate Article 2[4] UN Charter and does not constitute a breach of international security according to Article 39 UN Charter. Moreover, it mirrors the consensus among the vast majority of states that the US countermeasure is in accordance with international law. (29) This consensus is underlined by the decision of the North Atlantic Council of September 12, 2001. "The Council agreed that if it is determined that this attack was 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." (30) A similar decision was reached by the signatories to the Inter-American Treaty of Reciprocal Assistance (31) in accordance with its Article 3. (32)
      
      [14]
      The almost unanimous consensus of states effects the interpretation of the right of self-defence in customary law, to which Article 51 UN Charter is related. The way in which the traditional limits on self-defence have been handled in this case suggests that Article 51 UN Charter has been extended.
      
      [15]
      Affirming the existence of an armed attack on the United States according to Article 51 UN Charter presents no difficulty. Scholars have favoured drawing parallels to the Japanese attack on Pearl Harbor during World War II, an attack that resulted in less loss of life than September 11. (33)
      
      [16]
      With regard to the requirement that an attack be ongoing a certain shift in international practice can be detected. It lies in the nature of hit-and-run terrorist attacks that armed countermeasures of the attacked state are either too late (reprisal) or too early (pre-emptive strike). Previously states had only accepted pre-emptive strikes against objectively imminent armed attacks. (34) The mere feeling of being under threat was not sufficient justification. (35) Events after September 11 suggest, however, that if a terrorist attack can be qualified as an armed attack according to Article 51 UN Charter, and if there is no doubt about the terrorists' willingness to continue their ‘combat' after a tactical break, the use of force to prevent further attacks is now included in the right of self-defence. (36)
      
      [17]
      The main legal issue regarding the war in Afghanistan concerns the attribution of "private" acts of terrorism to a state (i.e. de facto organ). The argument that the US armed intervention could be aimed exclusively against the "private" organisation Al Qaeda does not stand in international law, because the integrity of the territory of Afghanistan was inevitably affected (refer para. 7). Moreover, the US offensive was not limited to the elimination of Al Qaeda. It also was targeted at the Taliban regime whose overthrow was achieved. (37) This last-mentioned goal of the US airstrikes was not criticised by other states.
      
      [18]
      It is most striking that the United States did not even attempt to identify effective control – i.e. the power of command – of the Taliban over Al Qaeda. The US Permanent Representative to the United Nations, John Negroponte, summarised his government's legal understanding after the start of the US military offensive against Afghanistan: "The attacks of 11 September 2001 and the ongoing threat to the United States and its nationals posed by the Al Qaeda organization have been made possible by the decision of the Taliban regime to allow parts of Afghanistan that it controls to be used by this organization as a base of operation." (38) This argument has been accepted by other states.
      
      [19]
      When viewed in isolation, the Afghanistan case sends a clear massage: The prerequisites for the right to rely on self-defence are toleration and provision of a safe haven for terrorists by a state. It is less clear where such factors impact the interpretation of Article 51 UN Charter.
      
      [20]
      One possible reading is that the attribution of the terrorists' armed attack to the state is no longer required. Instead, the violation of the pre-existing obligation in international law not to harbour terrorists now supports the right of self-defence. Another possible reading is that state practice following September 11 merely leads to the lowering of the threshold for the attribution of private conduct to the harbouring state. Such attribution no longer requires active support and planning of terrorist activities; instead, it is sufficient for a state to allow terrorists to use its territory as a base of their transborder operations.
      
      [21]
      The first reading will raise a variety of legal issues in future cases. Does the right of self-defence remain unaffected if the harbouring State agrees to prosecute the terrorists? There is no general legal principle in international law requiring the extradition of terrorists (aut dedere aut judicare). In the case of Lockerbie, Libya's obligation to extradite was based on an enforcement measure of the SC pursuant to Chapter VII UN Charter. (39) Moreover, does the right of self-defence remain unaffected if the harbouring state's sentencing does not meet the attacked state's expectations? In order to avoid these problematic issues, the second reading of the recent state practice – i.e. the lowering of the threshold for the attribution of private conduct – seems preferable even though it presents its own risks. At least it can be said that the lowering of the threshold for the attribution follows a trend in international law, which the divergence of the ICTY's holding in Tadic from the ICJ's in Nicaragua illustrates. Over the long term, both the first and the second readings of Article 51 UN Charter undermine the sensitive balance between the territorial integrity, prohibition of the use of force, the right of self-defence and the authority of the Security Council to launch enforcement measures against harbouring states pursuant to Chapter VII UN Charter.
      
      
      
      D. Conclusion
      
      [22]
      The broad international approval of the war in Afghanistan without a doubt reflects the magnitude of the tragedy of September 11. The recent consensus regarding the right of self-defence presents, however, several legal difficulties. Does it constitute a singular event or will future state practice confirm the generously interpreted right of self-defence? The risks inherent in lowering of the requirements in Article 51 UN Charter through state practice are obvious. States will soon find themselves in the role of Goethe's sorcerer's apprentice if the fight against terrorism is taken to justify the means and the right of self-defence is degraded to a general authorisation of the use of force. (40) The significance of a generous interpretation of Article 51 UN Charter has been indicated by the US Permanent Representative to the United Nations on October 7, 2001. "We may find that our self-defence requires further action with respect to other organizations and other states." (41)
      
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      • • (1) See Kirsten Schmalenbach, Der internationale Terrorismus, Ein Definitionsversuch, 42 NZWehrr 15 (2000).
          
          (2) See Responding to Terrorism: Crime, Punishment, and War, 115 Harvard Law Review, 1217, 1218 (2002).
          
          (3) UN Doc. S/PV 3245, p. 3 et seq. (27 June 1993).
          
          (4) See Kirsten Schmalenbach, Die Beurteilung von grenzüberschreitenden Militäreinsätzen gegen den internationalen Terrorismus aus völkerrechtlicher Sicht, 42 NZWehrr 177 (2000).
          
          (5) C. Wilson (USA), Sixth Committee, Opening Debate on Draft Convention for Suppression of Nuclear Terrorism, Press Release GA/L/3093, 25th Meeting (AM), November 11, 1998.
          
          (6) See Ian Brownlie, International Law and the Use of Force, p. 373; see generally Claus Kreß, Gewaltverbot und Selbstverteidigung nach der Satzung der Vereinten Nationen bei staatlicher Verwicklung in Gewaltakte, pp. 149 – 155.
          
          (7) For a different view see Sean D. Murphy, Terrorism and the Concept of "Armed Attack" in Article 51 on the U.N. Charter, 43 Harvard International Law Review 41, 50 (2002); Thomas M. Franck, Terrorism and the Right of Self-Defense, 95 AJIL 839, 840.
          
          (8) Contra: Christian Tomuschat, Der 11. September 2001 und seine rechtlichen Konsequenzen, 28 EuGRZ 535, 540 (2001); Yoram Dinstein, War, Aggression and Self-Defence, 2. ed., p. 238.
          
          (9) Draft Article 4 on Responsibility of States for Internationally Wrongful Acts (2001), International Law Commission, UN-Doc A/54/19), Official Records of the General Assembly, 56th Session, Supplement No. 10 (http://www.un.org/law/ilc/reports/2001/english/chp4.pdf).
          
          (10) Draft Article 8, supra HYPERLINKnote 9; see Gregory Townsend, State Responsibility of Acts of De Facto Agents, 4 Arizona Journal of International and Comparative Law 635 (1980).
          
          (11) United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ Reports 1980, p. 3, 29, para. 58.
          
          (12) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, p. 14, 64, para. 115.
          
          (13) International Criminal Tribunal for the Former Yugoslavia (ICTY), Appeals Chamber, Judgment, July 25, 1999, Procecutor v. Tadic, 38 ILM, 1518, para. 115 (1999).
          
          (14) Stephens Case, Report of International Arbitral Awards, Vol. 4, pp. 266 et seq.
          
          (15) Kenneth P. Yeager Case, Iran-US Claims Tribunal Reports 1987, Vol. 4, pp. 92 et seq.
          
          (16) Loizidou v. Turkey, Judgment, December 18, 1996, para. 63, ECHR Reports of Judgements and Decisions 1996 VI, p. 2216, 2235, para. 56.
          
          (17) ICTY, supra note 13, para. 131 (1999); confirmed: ICTY Appeals Chamber, Judgment, February 20, 2001, Celebici Case, 40 ILM, 639, para. 13 et seq. (emphasis added).
          
          (18) Draft Article 11, supra note 9, Commentary, p. 121.HYPERLINK
          
          (19) GA-Resolution 3314 (XXIX), Official Records of the General Assembly, 29th Session, Supplement No. 19, UN-Doc A/9619.
          
          (20) Nicaragua v. United States of America, supra note 12, p. 116, para. 230.
          
          (21) Tomuschat, supra note 8, 542.
          
          (22) Albrecht Randelzhofer in Bruno Simma (ed.), The Charter of the United Nations, A Commentary, 1994, Article 51, para. 37; Schmalenbach, supra note 4, 181.
          
          (23) GA-Resolution 2625 (XXV): Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970, United Nations Official Records, 25th Session, Supplement No. 28, UN-Doc A/8028.
          
          (24) Roberto Ago, Addendum to the Eighth Report on State Responsibility, Yearbook of the International Law Commission 1980 II/1, p. 13, 70, para. 122.
          
          (25) SC-Resolution 1368 (2001), adopted by the Security Council at its 4370th Meeting, on 12 September 2001 (SECURITY COUNCIL RESOLUTIONS - 2001).
          
          (26) See Michael Byers, Terrorism, the Use of Force and International Law after 11 September, 51 ICLQ 401 (2002).
          
          (27) SC-Resolution 1368 (2001), supra note 25, and SC-Resolution 1373 (2001), adopted the Security Council at its 4385th Meeting, on 28 September 2001 (SECURITY COUNCIL RESOLUTIONS - 2001).
          
          (28) See Franck, supra note 7, 840 (2001).
          
          (29) Murphy, supra note 6, 48 – 49.
          
          (30) NATO Press Release - (2001) 124 - 12 September 2001
          
          (31) INTER-AMERICAN TREATY OF RECIPROCAL ASSISTANCE
          
          (32) Byers, supra note 26, 409.
          
          (33) Murphy, supra note 6, 47.
          
          (34) See the famous Caroline-Case: Jennings, The Caroline and McLeod Cases, 32 AJIL 83, 89 (1938).
          
          (35) See the Security Council's disapproving reaction to the Israeli bombing of the Osiraq nuclear reactor in Iraq, SC-Resolution 488 of 19 June 1981 (Security Council Resolutions 1981).
          
          (36) Christopher Greenwood, International Law and the War Against Terrorism, 78 International Affairs 301, 310 (2002).
          
          (37) Contra: Franck, supra note 7, 840.
          
          (38) UN Doc S/2001/946 (http://www.un.int/usa/s-2001-946.htm).
          
          (39) SC Resolution-748 (1992) Security Council resolutions - 1992; see Michael Plachta, Lockerbie Case: The Role of the Security Council in the Enforcing of the Principle Aut Dedere Aut Judicare, 12 EJIL, 125 (2001).
          
          (40) See also Jonathan I. Chaney, The Use of Force Against Terrorism and International Law, 95 AJIL 835, 838 (2001).
          
          (41) supra note 38HYPERLINK.

[2046]

What were the proofs, in fact, that Al Quaeda was behind those attacks, exactly?
Between the fatty Bin Laden and the terrorists who died in the planet but didn't die... and were not islamic nuts by the slightest margin...

Please tell me this post is a poor attempt at humor.

[Who is like God arbour]

What were the proofs, in fact, that Al Quaeda was behind those attacks, exactly?

That's a good question.

Till now - as far as I know - the U.S. has no proof for that.

And as I have said already, the Taliban has offered to hand over Osama Bin Laden if the U.S. would have brought forward any evidence that he is responsible for the attacks. [1]

What we know is that most participants have come from Hamburg, Germany.

And, as I have already said, the German Government would not be allowed to hand over such terrorists to the U.S.

And if they would be prosecuted in Germany, they would never get such hard penalties as they would get in the U.S.

For example, Mounir al Motassadeq, who has helped the terrorists from 9/11 was sentenced to "only" 7 years prison [2].

I think that the U.S. government is not satisfied with that sentence. A death penalty would be what he would get in the U.S.

Maybe Germany is next state on the axis of evil. We don't fight against terror with the same ruthlessness as the U.S.

Who knows.

After all, the U.S. don't obey international law if it does not please them.

[2046]

There is an article in which a legal opinion is presented, which is similar to my own legal opinion, I have made 2001.

In summary, the article suggests that according to UN precedents, the self-defense doctrine is extremely narrow in applicability. It is useful only in regards to nations ("states"), and not terror groups or those harboring them. It also cannot apply to common terrorist-style attacks, but must refer to continuous attacks akin to those of international warfare between militaries.

Ergo, per the author, a nation does not have a right to self-defense in situations such as Afghanistan, where future terror attacks can be launched from the harboring nation.

Besides the fact that this is an obvious misinterpretation (indeed, one could readily argue that the support for the Afghanistan actions is itself a precedent and/or proof of the flawed interpretation, instead of an anomaly as he suggests), the argument is illogical on its face. National defense is not and cannot be based only on other nations, nor can one define a clear and present danger to international peace and justice only on the grounds of time between attacks and whether or not a national leadership was directly involved.

(Example: There was a fashion at one point in the US around 150 years ago to raise private armies and go mess with Latin American countries. Let's say something similar happened today, with a Bill Gates type building a fleet of warships out of Germany and harrying the US from time to time. Are you seriously going to tell me that we don't have a right to blow the shit out of his ships and shipyards?)

Even if the UN precedents were so narrowly framed as to support such an interpretation, however . . . a concept not supported by the UN's actions, mind you . . . it would only serve as proof that the UN's articles were overly narrow in scope when written. Terror was not an unknown quantity then, but it certainly wasn't the sort of thing seen circa September 2001.

(Incidentally, the author also refers to Saddam's attempted assassination of Bush as a terrorist act. Thanks.)

[Mr. Oragahn]

What were the proofs, in fact, that Al Quaeda was behind those attacks, exactly?
Between the fatty Bin Laden and the terrorists who died in the planet but didn't die... and were not islamic nuts by the slightest margin...

Please tell me this post is a poor attempt at humor.

No. I've seen data formulated, showing that the list of islam fundamentalists terrorists said to be on the planes, and died on these planes... were apparently not on these planes... and had activities (related to sex and alcohol) which didn't seem to fit with the protrait of your traditional AQ nutcase.

As for Bin Laden, I'll check again, but it seems he has openly refuted any order to execute the terrorist assault on the WTC.

After all, it's not like a previous incarnation of the US government didn't think about Northwoods. Knowing that key seats graviting around the White House power directly come from that legacy...

[Who is like God arbour]

Ever heard of

• • • pacta sunt servanda

Pacts must be respected. And the U.S. has entered in the U.N. and has therewith agreed to obey the rules of the U.N. They can't obey only these rules which pleases them and ignore these rule they don't like. They have to obey all rules. If they don't like some rule they can try to change them or they can quit their membership in the U.N.



And the interpretation of these rules is out of question. The legal opinion has shown that there is consensus about the interpretation of Article 51 UN Charter. It is irrelevant if you think that that is illogical or stupid. That are the rules.



And how the article has shown too, there was no further imminent attack. It was enough time to negotiate with the Taliban or to let the Security Council decide. There was no need to attack Afghanistan at once and without bringing forward any evidence that Osama Bin Laden has not only known of the planned attacks but has organized or substantial supported them. Such proof would be necessary to show that he is to a certain degree responsible at all.

Even if one would accept that 9/11 has given the right to self-defence in the meaning of Article 51 UN Charter, the right to self-defence would only allow to attack (as part of the defence) the attacker.
That means that the U.S. could have attacked justified - at most - the Al Quaeda but not the Taliban.

[Cpl Kendall]

Because it is the right thing to do. Why should we increase suffering in the world when it is in our power to reduce it

I say thier are bigger, much more horrible problems we need to deal with then if some guys at gitmo are kept n lockup. I mean it would be differnt if we were you know doing the short of stuff Sadam did to his prisoners or something.

In point of fact there have been several scandels in which it has come to light that the US has been torturing it's prisoners. The Abu Grahib (sp?) prison in Iraq is one infamous example. And then there's the allegations that the US is shipping it's prisioners abroad to countries that do use torture to work around it's own national restrictions. One of our own citizens, Mahr Ahar was deported to Syria on a stop over in New York on his way back to Canada from a visit to Syria and detained there for a year and tortured because the US suspected he had AQ ties. He was later released and the RCMP and CSIS investigation cleared him of all suspicion but the US continues to claim he has terrorist ties.

[Jedi Master Spock]

A quick note to everyone in this thread:

Just because this isn't a Trek/Wars topic doesn't mean the rules on politeness don't apply.

Just in case you don't feel like sorting through those multiple negatives: Be polite, please, regardless of your differences. Thank you.

[sonofccn]

The Abu Grahib (sp?) prison in Iraq is one infamous example

Which was mostly IIRC horribly humilation type stuff, not chopping off of hands or attaching batteries to parts of the body.

Also those responable were punished, and if i remember my timeline correctly were in the proccess thereoff before anyone even knew of the eyesore.

And then there's the allegations that the US is shipping it's prisioners abroad to countries that do use torture to work around it's own national restrictions.

Well I admit that isn't nice if the US is doing that.

[Cpl Kendall]

Which was mostly IIRC horribly humilation type stuff, not chopping off of hands or attaching batteries to parts of the body.

Also those responable were punished, and if i remember my timeline correctly were in the proccess thereoff before anyone even knew of the eyesore.

Actually it took a soldier to report it publicly before anything happened and even at that only the lowest on the totem pole got anything resembling a just punishment. The CO of the MP Brigade got demoted on an unrelated shoplifting charge.

Well I admit that isn't nice if the US is doing that.

No, it's quite the bucket load of BS.

[sonofccn]

Terry Lloyd

Looking at the link it does appear more along the lines of a sad accident then a willful murder by US soldiers. It's a shame but that is a risk of being in a warzone.

Pacts must be respected. And the U.S. has entered in the U.N. and has therewith agreed to obey the rules of the U.N. They can't obey only these rules which pleases them and ignore these rule they don't like. They have to obey all rules. If they don't like some rule they can try to change them or they can quit their membership in the U.N.

I agree in a general sense a pact must be respected, but in this case the law is either A) out of date, B) being interpreted far to narrowly or C) all of the above. Personaly I say we should leave the UN but I doubt thats going to happen. I'm all for changing the law, but if it comes down to doing the right thing or obeying a feel good law, well I'd rather do the right thing.

And the interpretation of these rules is out of question. The legal opinion has shown that there is consensus about the interpretation of Article 51 UN Charter. It is irrelevant if you think that that is illogical or stupid. That are the rules.

All it means is that a group have the same opinion. It doesn't make thier opinion right.

And how the article has shown too, there was no further imminent attack. It was enough time to negotiate with the Taliban or to let the Security Council decide.

Not in the strictess sense I suppose, other attacks wouldhave followed somewhere down the line. We simply fixed theproblem at it's source. Teh Taliban would have never given us bin ladin, and if you believe that I'm sorry thier is nothing I can say and waiting for the councile to get around to saying we can defend ourselfs is suicidal.

Even if one would accept that 9/11 has given the right to self-defence in the meaning of Article 51 UN Charter, the right to self-defence would only allow to attack (as part of the defence) the attacker.
That means that the U.S. could have attacked justified - at most - the Al Quaeda but not the Taliban.

That changed when they allied with hiim and refused to hand him over. Same as if you are war with one coutnry and another comes to it's aid.

WILGA you still have evaded my question. Would you allow your country to be attacked, killing thousands if not millions of lives in accordance with UN law. That is the issue at the heart of the matter. We could argue about UN incompetence and the defination of the law but I think this will cut to the heart of the matter.So what is your answer?