Você está na página 1de 19

Journal of Conflict and Security Law

View whole of

Issue 1, March Articles Anticipatory Self-Defe...

J Conflict Security Law (2008) 13 (1): 3 1 March 2008

Anticipatory Self-Defence and International LawA Re-Evaluation


Anticipatory Self-Defence and International Law Amos N. Guiora1 Professor of Law, S. J. Quinney College of Law, University of Utah. Oxford University Press 2008 Abstract Traditional state v state war is largely a relic. How then does a nationstate defend itself, pre-emptively, against an unseen enemy? Existing international law the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373does not provide sufficiently clear guidelines regarding when a state may take pre-emptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based 'strict scrutiny' approach to self-defence. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that pre-emptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on pre-emptive action, consequently establishing objective legal criteria for operational counterterrorism.

1. Introduction
One of the most important questions post-9/11 is how a nation state defends itself against an unseen enemy. How a nation state that believes in the rule of law and morality in armed conflict prevents attacks against its innocent citizens is our focus. Self-defence, or active pre-emptive self-defence, against the unseen enemy is extraordinarily difficult and fraught with enormous risks and dangers. How, and when, the state defends itself against such an enemy is critical to address; it is the combat of the future. In the context of post-9/11 operational counterterrorism, the question is whether self-defence, as presently articulated by international law, enables a state to preventively act in an effective way. 9/11 taught decision makers and commanders alike that in future military conflicts states will confront non-state actors, rather than other nation-states. The traditional statestate war as understood by the 'founding fathers' of international law is largely a historical relic. In the traditional war self-defence paradigm, states protect themselves either against armies massing against their border, or after attack by another nationstate. Self-defence in the 'unseen enemy' paradigm is ambiguous. It is not inherently clear who is attacking the state or who the state is protecting itself against. Unlike traditional warfare where militaries faced off with planes, tanks and warships, counterterrorism is characterised by an often unseen enemy and the battles take place in 'back alleys with dark shadows.' Self-defence in this environment is enormously complicated. The decision to pre-emptively attack a highly elusive target, oftentimes in the vicinity of civilians, is based almost

exclusively on intelligence information.2 Given this change in the nature of the conflict, the events of 9/11 clearly suggest the need to re-articulate international law.3 This article's fundamental assumption is that existing international law does not provide sufficiently clear guidelines to state decision makers regarding when to take pre-emptive4 or anticipatory action5 against a non-state actor. It is proposed that the Caroline Doctrine, UN Article 51, and the post 9/11 Security Council Resolutions 1368 and 1373 are insufficient in enabling the nation state to act early enough, provided intelligence is available. How the state, under the rubric of the rule of law and morality in armed conflict, protects itself by acting before an attack is an issue of enormous significance. In the self-defence debate, the critical questions are: what are the restraints, when the state can act, against what target, and against what enemy. In answering these questions it is critical that guidelines and criteria be developed regulating if and when a state may take anticipatory action. That is not to suggest that the state may not act, quite the opposite. It is, however, to forcefully advocate that the underlying reasons for state action are sound, legal and moral. This article proposes a new, process-based 'strict scrutiny' approach to preemptive self-defence against non-state actors. The 'strict scrutiny' approach means that a state can act early (earlier than allowed under existing international law) against a non-state actor, but the act must be based on reliable, viable, valid and corroborated intelligence presented to a court of law. This process leads to an institutional check on the executive. In seeking to answer these questions, this article will examine existing international law (Section 2) and will propose a strictscrutiny approach to state anticipatory self-defence (Section 3).

2. International Law and Self-Defence


How international law seeks to define, and limit, the right to self-defence has been analysed through the ages.6 It is not the intention of this article either to 'rehash' previous discussion or to emphasise the ambiguity of the debate. Rather, in seeking to articulate new standards, reflective of contemporary conflict, this article seeks to build on what has been previously suggested. However, the limitation of what has been previously offered is that it is relevant to 'yesterday's' paradigm, rather than today, much less tomorrow. The discussion below emphasises the requirement to re-articulate how international law defines self-defence. It is not to argue the irrelevance of the UN Charter 7 but rather to propose the articulation and implementation of new standards reflecting a new reality. Before addressing customary international law and international conventions and treaties, it is critical to set the stage with respect to what I refer to as 'the new threat'. While innumerable threats to the nation state exist,8 I will focus on terrorist bombings. Thomas Ricks argues9 that terrorist bombings are the greatest danger facing American forces in Iraq. The daily toll of insurgent bombings against innocent Iraqi civilians10 makes clear the damage caused to life and property alike; the planned bombings in Trafalgar Square11 and Glasgow12 indicate all too clearly the potential danger of terror bombings; and the planned, but foiled, simultaneous attack on commercial airlines, whether departing from London13 or the Philippines14 all highlight the enormous risk to society. While other threats are no less significant, some perhaps more dangerous, I would suggest that terror bombings are the most concrete manifestation of contemporary terrorism. To explain the critical relationship between terrorist bombings and self-defence it is necessary to engage in a relatively lengthy discussion regarding the former.

Otherwise, the reader may perceive self-defence as only an abstract concept. Therefore, the discussion below addresses self-defence from a most practical perspectivehow does society lawfully protect itself from this threat? Terror bombing is defined herein by the broadest possible parameters to include the following: dirty bombs, suicide bombings, remote-controlled bombings (without a terrorist exploding himself as differentiated from the suicide bomber), and nuclear weapons. Particular attention will be given to the indiscriminate killing of innocent civilians accomplished by the bombing methods mentioned above. Terror bombings, in the widest possible meaning of the term, represent the greatest threat presently posed by terrorists. Therefore, it is critical that effective counterterrorism measures are developed. '[B]y its sheer nature, [terrorist bombing] depends on isolated incidents to achieve its goals. The fragmented nature of most terrorist organisations makes it virtually impossible for the organisations to conduct anything other than smallscale acts.'15 Terror bombing is a concern precisely because of its indiscriminate nature, warranting attention due to its increasingly widespread use, relative ease of production, and difficulty of perpetrator identification and prevention. The terror bombing threat differs from other forms of terrorist attacks. To highlight this uniqueness, one may compare terror bombings to airplane hijackings. Airports already benefit from a security infrastructure. Although the efficacy of these systems is debatable, in theory, airports could modify or intensify existing resources and procedures to prevent attacks. In the airline industry, the intelligence community can use the records of flight plans to assess and prioritise risks. There are a finite number of flights to an identifiable number of potential targets (cities). Furthermore, passengers knowingly accept the risk when they choose to fly. Should a passenger prefer, could he or she use another form of transportation? Terror bombings, on the other hand, by their very nature do not target one geographical area or industry. Any building, bridge, landmark or gathering place is vulnerable. Intelligence gathering capabilities in countering terrorist bombings is exponentially more difficult than in response to other terrorist tactics. Not only is there no current security system to protect all sites, it is impossible to create one. There are an unlimited number of potential targets and terrorist actors. The intelligence assessment becomes much more difficult to prioritise. 16

A. The Caroline Doctrine


In 1837, US Secretary of State Daniel Webster articulated a definition of selfdefence, which evolved into customary international law.17 Webster's definition followed what has come to be known as the Caroline incident. The Caroline was a US steamboat attempting to transport supplies to Canadian insurgents.18 A British force interrupted the Caroline's voyage, shot at it, set it on fire and let it wash over Niagara Falls. Webster said that Britain's act did not qualify as self-defence because self-defence is only justified 'if the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.'19 According to Webster, Britain could have dealt with the Caroline in a more diplomatic manner. The Caroline Doctrine limits the right to self-defence to situations where there is a real threat, the response is essential and proportional, and all peaceful means of resolving the dispute have been exhausted. Article 51 of the UN Charter20 narrowed self-defence, making it permissible only in the event of an armed attack.21

B. UN Charter: Article 51
The UN Charter sought to articulate a world order devoid of military conflict.22 In an effort to avoid repeating the horrors of the Second World War, the UN Charter calls on nation states to peacefully resolve their conflicts. 'The purpose of the United Nations is to save the succeeding generations from the scourge of war.'23 'All Members shall settle their international disputes by peaceful means' 24; '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.'25 To that end, the UN Charter sought to limit when states could implement self-defence against other nation states. Article 51 authorises self-defence only if armed attack 'occurs.'26 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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-defence 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.27 This is a narrowing of the Caroline doctrine that provided for anticipatory selfdefence provided the threat to national security is reasonably believed to be imminent.28 Article 51's concept of pre-emption has been significantly reduced from the Caroline doctrine. The significance of this narrowing cannot be underestimatedfrom a customary international law principle enabling preemption to a treaty-based definition of self-defence dependent upon the occurrence of an armed attack. While Article 51 clearly expresses the obligation of nation states to prevent war, Lobel has suggested the following: The United Nations Charter prohibits the use of force except when authorised by the Security Council or when undertaken by individual nations in self-defence and in response to 'an armed attack.' Moreover, as a general matter, the United Nations has sought to limit the Article 51 self-defence exception to prevent its misuse. First, Article 51 permits only those actions taken in self-defence; reprisals and retaliations are proscribed under the U.N. Charter. In other words, a nation can respond to an ongoing attack, including one waged by a terrorist organisation, by using force. However, that nation may not forcibly retaliate against another in response to an unlawful act that the latter committed against the former in the past. The reasoning behind this rule is simple: a nation subject to an ongoing attack cannot be expected to wait for the international community's aid before fighting back. Obviously, when a nation is under attack, immediate action is necessary. On the other hand, a nation whose citizens are no longer being attacked must seek U.N. intervention; to allow military reprisals would be to encourage the renewed use of force. This would result in a spiralling escalation of violence. Thus, the U.S. government, most state actors, the U.N. Security Council, and the International Court of Justice have officially taken the position that armed reprisals are outlawed.29 The fundamental question facing decision makers in the context of self-defence is when pre-emptive actions can be undertaken. Pre-emptive action is predicated on intelligence information that must meet the reliability and corroborated standard this article seeks to forcefully advocate. Furthermore, for pre-emptive action to be

legitimate it must be proportional in the context of the attack it is intended to prevent.30 The threat must be concrete, not vague based on loosely gathered intelligence that may be more fantasy than fact. 31 In determining proportionality, decision makers must determine both the immediacy of the threat and its severity.
32

Customary international law permits a state to respond to a threat and infringe on the territorial sovereignty of another nation when four criteria are met: (i) it is acting in self-defence; (ii) the attack is substantial and military (i.e., not an 'isolated armed incident'); (iii) the offending nation is complicit, unwilling, or unable to prevent further attacks; and (iv) the attack is widespread and imminent.33 States, in order to adequately defend themselves, must be able to take the fight to the terrorist before the terrorist takes the fight to it. From experience gained over the years, the state must act pre-emptively in order to either deter terrorists or, at the very least, prevent terrorism. The question that must be answered, both from a legal and policy perspective, is what tools are necessary for the state to combat terrorist bombings? Active self-defence would appear to be the most effective tool; that is, rather than wait for the actual armed attack to 'occur' (Article 51), the state must be able to act anticipatorily (Caroline) against the non-state actor (not considered in Caroline). The development of a new body of international law providing legal justification for such actions (active self-defence against a non-state actor) must be consistent with existing principles and obligations such as proportionality, military necessity, collateral damage and exhaustion or unavailability of a peaceful alternative. The two concepts, active self-defence and the four fundamental principles listed above, are not in conflict; rather, they are critical to formulating international law's response to modern 'warfare', which is clearly a very different 'war' than traditional state v state conflict. In undertaking operational counterterrorism, decision makers are increasingly faced with the following dilemma: whether an action, either responsive or preventive, can be undertaken even if it involves violating the sovereignty of another nation state. In violating the sovereignty of another nation-state under the banner of self-defence, it can be argued that there is an implicit determination that the violated state is a failed state. As an example, in response to a terror attack in Israel, the Israeli air force attacked terrorist bases in Syria.34 Though Israel was widely criticised,35 the Government explained that the target was not Syria; rather the Israeli Air Force (IAF) was attacking terrorist bases located in Syria36 with no intent to violate Syrian sovereignty. This argument would appear disingenuous as Syrian sovereignty was clearly violated by the breach of Syrian airspace by the IAF.37 In contrast, the reported IAF attack on a Syrian target(s)38 is substantially different; the previous raid was on terrorist bases located in Syria whereas the most recent attack (if media reports are accurate) was aimed at specific Syrian targets. Similarly, USA violated Sudanese and Afghanistan sovereignty when the US Air Force, in response to the 1998 embassy bombings in Kenya and Tanzania, attacked targets in those two countries. USA fired seventy-nine tomahawk missiles at alleged bin Laden outposts in Sudan and Afghanistan, including a factory believed to produce chemical weapons. President Clinton relied on traditional Article 51 self-defence in justifying the act, but added that the strikes 'were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities.'39

While the attack may be considered to be retaliatory rather than self-defence in nature, the question of anticipatory self-defence is relevant to this attack.40 If, as had been reported,41 the factory was indeed producing chemical weapons then an argument could be made that America, and America's allies would potentially be at danger. We shall return to this attack in Section 3.

C. UN Security Council Resolutions post-9/11


Following the 9/11 attacks, the UN Security Council passed two resolutions addressing appropriate responses to terrorism, UN Security Council Resolution 136842 and 1373.43 Relevant passages of UN Security Council Resolution 1368 are: The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter, 3. Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable; 4. Calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular resolution 1269 (1999) of 19 October 1999; 5. 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; 44 And Resolution 1373: The Security Council, Reaffirming its resolutions 1269 (1999) of 19 October 1999 and 1368 (2001) of 12 September 2001, Reaffirming further that such acts, like any act of international terrorism, constitute a threat to international peace and security, Reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001), 2. Decides also that all States shall: (b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information; 3. Calls upon all States to: (c) Cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts; 45 What effect did these resolutions have on self-defence? Some scholars have suggested that the resolutions made a difference: (i) Both resolutions reaffirmed the inherent right of 'individual or collective self-defence' as recognised by the UN Charter, under Article 51; (ii) 1373 emphasised that any further acts would be considered threats to peace and security; (iii) both 'implicitly' recognised that the September 11 attacks constituted an attack on the USA, under Article 51; and (iv) according to 1373, members are 'obligated to create the prescribed legal framework in its national laws and institutions to combat terrorism, and to co-

operate fully with other states on a global scale in this effort thereby establishing an international legal framework to combat terrorism.' 46 However, other scholars argue that while the resolutions recognised and reaffirmed the right to self-defence, they ultimately do not facilitate nor articulate a broader reading of self-defence. According to Greg Maggs, the resolutions [D]id not say what the right to self-defence entails. Most particularly, it did not say that al-Qaeda had committed an 'armed attack' for the purposes of Article 5 and it did not say that the United States had a right to act in self-defence in response to the attack by al-Qaeda.47 While existing international law grants states a fundamental right to self-defence, the existing limitationsthe Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373do not provide a sufficiently clear guideline regarding when a state may act. The existing law does not address when a state may take pre-emptive or anticipatory action against a non-state actor, and thus does not provide an actionable guideline for modern-day armed conflict.

3. Strict Scrutiny Standard


I propose that the above leads to a solution. That solution is the adoption of a strict scrutiny standard in the implementation of intelligence information with respect to operational counterterrorism conducted in accordance with international law. What is strict scrutiny and how is it to be implemented in the context of operational counterterrorism? Why is there a need, if at all, for an additional standard articulating self-defence? The strict scrutiny standard as proposed in this article would enable states to operationally engage a non-state actor earlier, predicated on reliable, viable, valid and corroborated intelligence. To re-phrase, the strict scrutiny test seeks to strike a balance enabling the state to act sooner, but subject to significant restrictions. How is this to be implemented? After all, no court of law will, in reality, review the intelligence information that is the basis for the attack. Can the 'strict scrutiny' standard have genuine teeth? Is it enforceable? What prevents a nation-state from acting pre-emptively, whether available intelligence meets either the three-part test or the strict scrutiny test this article proposes? What is the substantive justification for proposing a strict scrutiny test? In essence, the proposal is predicated on the understanding that while nationstates need to engage in operational counterterrorism, mistakes regarding the correct interpretation and analysis of intelligence information can lead to tragic mistakes. Adopting stringent admissibility standards would seek to minimise operational error. That is the proposal's substantive thesis.

A. The Past Failures


Let us examine particular operational failures that were preventable if the available intelligence information were subject both to the substantive and procedural measures the strict scrutiny proposal advocates. In the aftermath of the 1972 Olympic Games attack on Israeli athletes,48 Prime Minister Golda Meir ordered the Mossad49 to kill Palestine Liberation Organization (PLO) members responsible for the attack.50 A number of individuals known to have participated in the attack were killed by Mossad agents.51 However, the operation was prematurely terminated after a Moroccan waiter, the victim of mistaken identity, was tragically killed in Lillehammer, Norway. The relevance of the accidental killing of the waiter to the strict scrutiny test is the following: on the proviso that the state adopts an anticipatory self-defence policy, then the decision to 'operationalise'52 depends on

intelligence information. What the strict scrutiny test seeks to achieve is a critical balance between the state's need to protect itself (self-defence) and its requirement to protect innocent individuals.53 The waiter was an innocent victim, killed as a result of an operational error. However, as the state was the initiator, it had primary responsibility in ensuring minimum loss of innocent life. The principle of collateral damage only requires minimising loss of innocent life.54 Does that mean that the mistaken killing of the waiter was 'acceptable' within the boundaries of operational counterterrorism?

B. The Need to Objectify Counterterrorism


One of the fundamental principles of counterterrorism and international law is the lack of 'objectification'. To that end, one of the fundamental aims of the 'strict scrutiny' test is to 'objectify' operational counterterrorism. What does that suggest? Operational decisions are predicated on numerous considerations55 made by commanders and decision makers, based on subjectivity no less than objectivity. Objectifying counterterrorism when acting 'in the name of self-defence', then, suggests minimising the subjective. How is that to be accomplished? 'Imminence' is, in many ways, the standard term-of-art in discussing self-defence. 56 The standard operational dilemma confronting commanders is: 'how imminent is imminent.'57 By analogy to the schoolyard bully, is it when a fist is about to come in contact with the nose or when the fist is elevated in the direction of the nose. Is it when the hand is about to be closed into a fist? Perhaps when the nose has reasonable suspicion58 to believe it is in danger? In the alternative, when the nose concludes there is probable cause?59 There are two distinct paradigms at work here. One, when the nose 'sees' the fist. The second, when the nose 'believes' it is conceivably in danger. The first is physical and immediatethe fist is cocked; the question is how close to the nose and what measures may the nose take to minimise the danger.60 The second is predicated on different factors and considerations: rather than seeing the fist, the nose has gathered61 intelligence information that the fist intends to strike. That is, rather than seeing the fist, the nose believes it is in danger from the unseen (by him) fist. What does 'unseen' mean? Does it suggest the possibility of being 'blind-sided' or unseen to the extent that while the hand is not closed there are indications that it will be closed? If there are such indications, are they time sensitive or event dependent? Is there a prior history between the fist and the nose that would affect the requisite decision-making? If the nose has not seen the clenched fist, is there the possibility that someone else has who has taken it upon themselves to warn the nose? Is the purveyor of the warning reliable? Is the information viable and can it be corroborated? In response to al-Qaeda's act on American embassies in Tanzania62 and Kenya63 President Clinton ordered the bombing of what was believed to be a chemicalmaking factory in Sudan.64 President Clinton's authorisation was based both on the need to respond to the attack65 and intelligence information. However, subsequent reports unequivocally proved the intelligence inaccurate.66 The building in question was not a chemical-making factory; rather it housed a pharmaceutical company.67 Would adoption of the strict scrutiny test have prevented this intelligence and political failure? Would the strict scrutiny test have saved the life of the Moroccan waiter? Would the strict-scrutiny criteria have convinced President Bush that George Tenet's 'slam dunk' was an intelligence failure of monumental and tragic

proportions? The answer is not necessarily yes but it would have enabled decision makers in all three instances to ask questions that either were not 'on the table' or responded to in a less than satisfactory manner. Those questions were not asked either because relevant decision makers did not know or want to ask them, or because the relevant intelligence community chose not to 'fill the gap' of knowledge.

C. The Legs
The four legs of the strict scrutiny test are: the state has a fundamental right to engage in active self-defence; the state's primary responsibility is to protect the safety and welfare of its citizens68; operational counterterrorism must be predicated on the rule of law69, morality in armed conflict70 and effective policy71; actionable intelligence must be reliable, viable, valid and corroborated. Let us examine and then apply each leg to operational reality.72 The ultimate question is when and under what circumstances may the state act in accordance with lawful self-defence. In advocating the strict scrutiny test, the effort is to objectify the process by establishing clear criteria. In order to do so, it is essential to examine each leg separately and then jointly. The guiding premise is that according to the 'earlier in time' standard, states can protect themselves based on intelligence information provided it meets the 'admissibility' test. 1. Fundamental Right 2. State's Primary Responsibility 3. Operational Counterterrorism The state has a fundamental right to self-defense. The state's primary responsibility is to protect the safety and welfare of its citizens. Operational counterterrorrims must be predicated on the rule of law, morality in armed conflict and effective policy. Actional intelligence must be reliable, viable, valid and corroborated.

4. Intelligence

The state's fundamental responsibility to protect its citizenry goes to the essence of self-defence. That obligation is as fundamental as the right to self-defence. However, that obligation while fundamental is not an absolute; the potential harm to an additional protected class must be taken into consideration. That additional, protected class is not a legitimate target and the state is obligated to provide it reasonable protections. What does that mean in the context of 'strict scrutiny?' The operational impact or significance of the obligation regarding a protected class is an inherent limitation on power. Aharon Barak's theory, 'self-imposed restraint',73 goes to the essence of this dilemma. While the protection of its citizens is the state's primary obligation, it is not the sole obligation. How that requisite balance is attained is critical to operational counterterrorism subject to the rule of law and morality in armed conflict. How does the strict scrutiny test contribute to achieving the required balance? Rather than decision making predicated on loose standards and undefined criteria, the strict scrutiny theory seeks to establish objective criteria prior to operational action. In advocating 'strict scrutiny' prior to operationalising intelligence information, the emphasis is on striking a balance between powerful and legitimate obligations. The Barak theory espouses the doctrine that both the protected categories must be equally protected. While that has come under fire, the obligation to protect otherwise unprotected civilians is undeniable. That obligation on the one hand

limits operational counterterrorism and on the other hand advocates greater operational counterterrorism. Strict scrutiny suggests acting earlier against an unprotected category of legitimate targets provided the intelligence information is reliable, viable, valid and corroborated. In the context of the duality suggested by protected classes, application of the test suggests that greater protection will be offered to both protected classes while more effectively and earlier targeting unprotected, legitimate targets. With respect to what I call the 'new triangle of operational counterterrorism (law, policy and morality), application of the strict scrutiny test enables the state to meet the four principles of international law (collateral damage, proportionality, military assistance and alternatives) that are the 'heart and soul' of the laws of war. Proper application of those four also contributes to, but does not guarantee, more successful winning of 'hearts and minds'. By enabling the state to act earlier than is articulated in the three international law standards (Caroline Doctrine, Article 51 and UN Resolutions 1368, 1373) but subjecting it to rules of evidence governing admissibility of evidence, the strict scrutiny test facilitates states in acting in accordance with these four international principles. The four principles are intended to govern the relationship between the state and protected civilians74 in the context of armed conflict. In laying the foundation for this relationship, these four principles represent the limits of power for they confine state action to an unprotected class.75 That is, the four principles exercise control on how far, and when, the state can protect itself. To that end, the strict scrutiny test respects that limitation while facilitating broader yet more precise state action. Rather than violating those four principles, application of the strict scrutiny test would ensure greater respect of international law. Some may argue that operational errors are inevitable;76 I would suggest that while combat inherently involves (if not invites) mistakes and tragedy, the state is obligated to minimise such occurrences. From here we reach the penultimate question. How do decision makers know that the available intelligence indeed justifies state action? What are the standards that are to be used? The objectification of counterterrorism predicated on a process seeks to develop standards that will directly lead to more measured, therefore effective, operational decisions. What is the process? As the answer must be practical, the intelligence-operational world must be made vivid.77 Operational counterterrorism is comprised of sources (sometimes with their own agenda), case officers, terrorists, decision makers' legal advisors and operators (those who operationally engage the terrorist). It is a complicated 'community'; the stakes are extraordinarily high because wrong decisions result in innocent deaths. Hesitation to 'pull the trigger' may simultaneously spare the life of a terrorist while directly contributing to the death of an innocent civilian. Wrong identification (the Moroccan waiter) also results in the death of innocent individuals. Therefore, the strict-scrutiny approach suggests supremacy of intelligence information and the requirement that it meet admissibility standards. To wit: in requesting permission to 'shoot to kill' the commander is presented the following facts. According to the intelligence community, an individual dressed in a certain manner and carrying a particular bag would, if not killed, present a grave threat to national security. The operational window of opportunity available to the commander was limited to a few minutes. Troops had been strategically in a 'ready' position. The individual in question walked like and carried a bag similar to the presented intelligence information. But was he the same person? That was the dilemma I was faced with when called by the commander. In preparation for such a

request,78 I had developed a checklist of questions for those seeking my authorisation for such decisions. Those questions included: 1. 2. 3. 4. 5. 6. Was the commander convinced that the individual fits the intelligence picture? 7. Had the commander directly spoken to the case officer or had the information been relayed? 8. What weapons were available to the commander (for example: night time vision)? 9. 10. Did the commander believe the intelligence information? Was the intelligence information corroborated? Did the individual have known prior affiliation with terrorist groups? Would collateral damage be minimised? How significant was the risk presented? What were the alternatives (why could he not be arrested)? Who is the source (in an effort to ascertain reliability and viability)?

These questions were predicated on the states fundamental right to self-defence and therefore the legitimacy of operational counterterrorism. But, just as importantly, they reflected a refusal to 'say yes' (to killing the individual) solely based on what was reported to the commander regarding the content of a conversation between the source and the case officer. The risks (killing an innocent individual) are too great to answer in the affirmative based on limited facts or information. In correlating this dilemma to the criminal law process, the questions

are similar: 1. When does the prosecutor have enough evidence to submit an indictment? 2. What evidence meets tests of admissibility (substantively and procedurally)? 3. 4. 5. What evidence meets probable cause standards? What evidence justifies conviction? What evidence raises doubts as to guilt?

--While the criminal law process is predicated on 'separation of powers' (the prosecutor represents the executive branch, the judge the judiciary; the defence attorney represents the accused)79 operational counterterrorism is on its face devoid of legislative oversight or judicial review. While the executive clearly prefers to operate in a vacuum, the question whether that most effectively ensures effective operational counterterrorism is an open question. The advantage of institutionalised, process-based input into executive action prior to decision implementation is worthy of discussion in operational counterterrorism. The stakes are too high. It is that institutionalised, process-driven approach that is the intellectual backbone of the strict scrutiny test. Rather than relying on the executive branch making decisions in a 'closed world' devoid of oversight and review, the strict scrutiny test suggests the following: that while the state can act earlier than is presently the model, the intelligence information justifying the proposed action must be submitted to a Court that would ascertain the information's 'admissibility'. The discussion before the Court would necessarily be conducted ex parte. However, the process of preparing the available intelligence information and submitting it to a Court would significantly contribute to minimising operational error that might otherwise occur. D. The Answer: How? When? Where?A Court of Law The logistics of this proposal are far less daunting than might seem: the executive would submit the intelligence information to a court of law. The submitted intelligence, however, must be reliable, viable, valid and corroborated to be considered by the court. The court will then assume a dual role; the court will examine (actually, in theory cross-examine) the representative of the intelligence community and subsequently rule as to the information's admissibility. In ruling on the information's 'admissibility' the court would be authorised to order the government to provide additional intelligence prior to 'signing off' on the

request.80 While the proposal may explicitly call for changing the nature of the relationship between the executive and the judicial branches of the government, it would serve to minimise intelligence-based mistakes in operational counterterrorism. Is the court's decision enforceable? Can the executive ignore the court's ruling? To ensure enforcement, a President that acts in contravention to the court's ruling could be liable for committing a crime and possibly an impeachable offence. The proposal does not limit the states fundamental right to self-defence. Rather, it creates a process seeking to objectify counterterrorism by seeking to establish standards for determining whether intelligence information is 'admissible'. Precisely because terrorism and therefore counterterrorism are endemic to the coming generations, it is necessary to rethink how operational counterterrorism is conducted. The inherent right to self-defence must be tempered with recognition of the 'limits of power'. The strict scrutiny test, which enables governments to act earlier than envisioned in the three existing paradigmsCaroline Doctrine, Article 51 or post 911 Security Council resolutionsrecognises that fundamental right. In order to assist decision makers to more effectively meet their obligations with respect to two separate protected classes, the strict scrutiny test proposes imposing process on operational counterterrorism.

4. Final Word
In this article, I have sought to both articulate the dissonance between modern-day armed-conflict (state v non-state actors) and existing international law, and propose a viable solution. While international law establishes the right to state selfdefence, it is inherently lacking in determining when a state may engage in preemptive or anticipatory action. The strict-scrutiny approach to self-defence proposed in this article would allow a state to act earlier, provided that the executive branch can present reliable, viable, valid and corroborated intelligence to a court prior to undertaking a pre-emptive operational counterterrorism measure. While the proposed paradigm may be perceived as limiting the executive's discretion, the diametric opposite is the case. The paradigm promotes institutionalising pre-emptive operational counterterrorism by expanding when the state may act, subject to judicial authorisation. It does so by recommending the adoption of a process necessary to ensure lawful responses to terrorism and thereby legalising counterterrorism.
1

Thanks to Artemis Vamianakis (S. J. Quinney College of Law, J. D. expected, 2009) for her invaluable research and editing contributions.
2

See D. D. Caron, 'The Rule-Outcome Paradox, Madness Cascades and the Fog of Preemption: Seeking the Best Rule for Use of Force', (2004) 27 Hastings Int'l & Comp. L. Rev. 481 at 492495; A. N. Guiora and E.M. Page, 'The Unholy Trinity: Intelligence, Interrogation and Torture', (2006) 37 Case W. Res. J. Int'l Law 427; S. P. Marks, 'Branding the War on Terrorism: Is There a New Paradigm of International Law?', (2006) 14 Mich. St. J. Int'l L. 71 at 94.
3

To that end, I am a member of a group of international academics'New Battlefields old Laws: From the Hague Conventions to Asymmetric Warfare', Institute for National Security and Counterterrorism, Syracuse University, an Interdisciplinary Working Group recommending changes to the Laws of Armed Conflict, suggesting policies that can combat asymmetric war and considering human rights dimensions of terrorist strategiesthat has convened for the specific purpose of recommending changes to international law. For articles emphasising the need to re-articulate self-defence in international law, see M. Baker, 'Terrorism and the Inherent Right of Self-Defence: A Call to Amend Article 51 of the United Nations Charter', (1987) 10 Hous. J. Intl. L. 25; R. Hendrickson, 'Article 51 and the Clinton Presidency: Military Strikes U.N. Charter', (1999) 19 B.U. Intl. L.J. 207; G. Travalio, 'Terrorism, International Law, and the Use of Military Force', (2000) 18 Wisc. Intl. L.J. 145; T. Franck, 'When, If Ever, May States Deploy Military Force Without Prior Security Council Authorization?', (2001) 5 Wash. U. J.L. & Poly 51; R. Falk, 'What Future for the UN Charter System of War Prevention?', (2003) 97 AJIL 590; J. Stromseth, 'Law and Force after Iraq: A Transitional Moment', (2003) 97 AJIL 628; M. Nabati, 'International Law at a Crossroads: Self- Defence, Global Terrorism, and Pre-emption: A Call to

Rethink the Self-Defence Normative Framework', (2003)13 Transnatl. L. & Contemp. Probs. 771; T. Franck, 'What Happens Now? The United Nations After Iraq', (2003) 97 AJIL 607; A-M. Slaughter, 'Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform', (2005) 99 AJIL 619; Y. Lupu, 'Gaps and Power: Assessing Reform of the U.N. Charter', (2006) 24 Berkeley J. Intl. L. 881.
4

Pre-emptive self-defence allows for reaction when a serious threat to national security exists. This interpretation expands the notion of imminence. This articulation of self-defence was adopted in The National Security Strategy of the United States. For additional discussion see M. W. Reisman and A. Armstrong, 'The Past and Future Claim of Pre-emptive Self-Defence', (2006) 100 AJIL 525; J. Yoo, 'International Law and the War in Iraq', (2003) 97 AJIL 563; C. Gray, International Law and the Use of Force (2nd ed., 2004) 133; A. Sofaer, 'On the Necessity of Pre-emption', (2003) 14 EJIL 209; M. Glennon, 'Pre-empting Terrorism: The Case for Anticipatory Self-Defence', Wkly. Standard, 28 January 2002.
5

Anticipatory self-defence allows for reaction when an attack is imminent. The UN Security Council supports this interpretation of self-defence, see Report of the High-Level Panel on Threats, Challenges, and Changes, UN doc. A/59/565 (2004). For further discussion see Y. Dinstein, War, Aggression, and Self-Defence (2nd ed., 1992) 182; O. Schachter, 'The Right of States to Use Armed Force', (1984) 82 Mich. L. Rev. 1620; R. Wedgwood, 'Responding to Terrorism: The Strikes Against bin Laden', (1999) 24 Yale J. Intl. L. 559; R. Erickson, 'Legitimate Use of Military Force Against State- Sponsored Terrorism', (1989) 100103; A. Cassese, International Law in a Divided World (1986) 230236; J. Brunnee and S. Toope, 'The Use of Force: International Law After Iraq', (2004) 52 Intl. & Comp. L.Q. 785; D. W. Bowett, Self-Defence in International Law (1959) 18889.
6

For further discussion on this general topic, see R. Schildkraut, 'Where There Are Good Arms, There Must Be Good Laws: An Empirical Assessment of Customary International Law Regarding Pre-emptive Force', (2007) 16 Minn. J. Intl. L. 193; J. Green, 'Docking the Caroline: Understanding the Relevance of the Formula in Contemporary Customary International Law Concerning Self-Defence', (2006) 14 Cardozo J. Intl. & Comp. L. 429; M. Skopets, 'Battered Nation Syndrome: Relaxing the Imminence Requirement of Self-Defence in International Law', (2006) 55 Am. U. L. Rev. 753; J. Rabkin, 'American Self-Defence Shouldn't Be too Distracted by International Law', (2006) 30 Harv. J. L. & Pub. Poly. 31; C. Bordelo, 'The Illegality of the U.S. Policy of Pre-emptive Self-Defence Under International Law', (2005) 9 Chap. L. Rev. 111; N. Ochoa-Ruiz and E. Salamanca-Aguado, 'Exploring the Limits of International Law Relating to the Use of Force in Self-Defence', 16 EJIL 499 (2005); A. E. Eckert and M. Mofidi, 'Doctrine of DoctrinarieThe First Strike Doctrine and Pre-emptive Self- Defence Under International Law', (2004) 12 Tul. J. Intl. & Comp. L. 117; D. B. Rivkin Jr., A. L. Casey and M. DeLaquil, 'Pre-emption and Law in the Twenty-First Century', (2004) 5 Chi. J. Intl. L 467; J. Yoo, 'Using Force', (2004) 71 U. Chi. L.R. 729; M. N. Schmit, 'Pre-emptive Strategies in International Law', (2003) 24 Mich. J. Intl. L. 513; M. E. O'Connell, 'American Exceptionalism and the International Law of Self-Defence', (2002) 31 Denv. J. Intl. L. & Poly. 43; A. C. Arend, 'International Law and the Recourse to Force: A Shift in Paradigms', (1990) 27 Stan. J. Int'l. L. 1. Specifically focusing on self-defence to fight terrorism, see J. E. Kastenberg, 'The Use of Conventional International Law in Combating Terrorism: A Maginot Line for Modern Civilization Employing the Principles of Anticipatory Self-Defence & Pre-emption', (2004) 55 A.F. L. Rev. 87; N. A. Shah, 'Self-Defence, Anticipatory Self-Defence and Pre-emption: International Law's Response to Terrorism', (2007) 12 JCSL 95; J. Beard, 'America's New War on Terror: The Case for Self-Defence Under International Law', (2002) 25 Harv. J. L. & Pub. Poly. 559; E. Gross, 'Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-Defence', (2001) 15 Temp. Intl & Comp. L. J. 195.
7

See T. Franck, 'Who Killed Article 2(4)?' (1970) 64 AJIL 809; A. Arend, 'International Law and the Pre-emptive Use of Military Force', (2003) 26 Wash. Q. 89; M. Glennon, The Fog of Law: Self-Defence, Inherence and Incoherence in Article 51 of the United Nations Charter, (2002) 25 Harv. J. L. & Pub. Poly. 539.
8

See J. J. Paust, 'Use of Force Against Terrorists in Afghanistan, Iraq and Beyond', (2002) 35 Cornell Int'l. L.J. 533; M. P. Popiel, 'Redrafting the Right of Self-Defence in Response to International Terrorism', (200203)6 Gonz. J. Int'l. L. 5; N. G. Printer, Jr., 'The Use of Force Against Non-State Actors Under International Law: An Analysis of the U.S. Predator Strike in Yemen', (2003) 8 UCLA J. Int'l. L. & Foreign Aff. 331; D. Richemond, 'Transnational Terrorist Organizations and the Use of Force', (2007) 56 Cah. U. L. Rev. 1001; K. N. Trapp, 'Back to Basics: Necessity, Proportionality, and the Right of SelfDefence Against Non-State Terrorist Actors', (2007) 56 Int'l. & Comp. L. Q. 141.
9

T. Ricks, Fiasco: The American Military Adventure in Iraq (2006).

10

Between 1 May 2003 and 16 March 2007, 10,732 Iraqi civilians died from car, suicide or roadside bombs. 1,795 separate attacks occurred during this time. Between 16 March and 17 July 2007, an additional 1,587 Iraqi civilians have died from car, suicide or roadside bombs. Information from <http://www.iraqbodycount.org> (last accessed 20 July 2007).
11

29 June 2007Two cars were found near Trafalgar Square loaded with nails packed around canisters of propane and gasoline, set to detonate and potentially kill hundreds in the theatre &

nightclub district. This plot was uncovered two days after Gordon Brown, the new prime minister, had taken office, see P. Dodds, 'London Police Foil Major Terror Plot,' The Washington Post, 29 June 2007, available at <http://www.washingtonpost.com/wpdyn/content/article/2007/06/29/AR2007062900584_pf.html> (last accessed 20 July 2007).
12

29 June 2007Thirty-six hours following the attempted London car bombs, ibid., the suspected terrorists travelled to Glasgow where they attempted a failed car bombing at Glasgow Airport. Witnesses saw a car drive through the doors of the main terminal building, then the driver and passengers jump out and attempt to detonate the vehicle. Additional information is available at <http://news.bbc.co.uk/2/hi/uknews/scotland/6257846.stm> (last accessed 20 July 2007). The two incidents were found to be connected, and were linked to a larger group with plans for attack within the United States, see <http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/07/05/nterror405.xml> (last accessed 20 July 2007).
13

10 August 2006British police arrested 21 people in connection with a terrorist plot to blow up an aircraft flying from the United Kingdom to the United States. The plot involved hiding liquid explosives in carry-on luggage, with at least six flights targeted, see <http://www.cnn.com/2006/WORLD/europe/08/10/uk.terror/index.html> (last accessed 20 July 2007).
14

4 March 2003A bomb hidden in a backpack exploded at an airport terminal in Davao, Mindanao in the Philippines. Twenty-one people were killed, see <http://www.cnn.com/2003/WORLD/asiapcf/southeast/03/04/phili.airport/index.html> (last accessed 20 July 2007).
15

F. A. Biggio, 'Neutralizing the Threat: Reconsidering Existing Doctrines in the Emerging War on Terrorism', (Fall 2002) 34 CWRJIL 1.
16

This paragraph cites A. N. Guiora, 'Terrorism Bombing', in International Criminal Law, (Cherif Bassiouni ed.), Transnational Publishers, 3rd ed. (in press).
17

Customary international law 'derives from a general practice accepted as law' International Committee of the Red Cross, Customary International Humanitarian Law: Questions & Answers, 15 August 2005, available at <http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList133/E02D32D1A4976030C1256FEB005007A1>.
18

See M. A. Rogoff & E. Collins Jr., 'The Caroline Incident and the Development of International Law', (1990) 16 Brook. J. Int'l. L. 493.
19

E. Gross, 'Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-defence: Human Rights versus the State's Duty to Protect its Citizens', (2001) 15 Temple Int'l. & Comp. L. J. 195 at 211.
20

Article 51, Charter of the United Nations. E. Gross, loc. cit., fn. 18.

21

22

See K. G. Tackaberry, 'Time to Stand up and be Counted: The Need for the United Nations to Control International Terrorism', (2007) Army Law 1 at 6; History of the United Nations, available at: <http://www.un.org/aboutun/unhistory/> (last accessed 28 December 2007); History of the Charter of the United Nations, available at: <http://www.un.org/aboutun/charter/history/> (last accessed 28 December 2007).
23

Preamble, Charter of the United Nations. Article 2(3), Chapter I, Charter of the United Nations. Article 2(4), Chapter I, Charter of the United Nations. UN Charter Art. 51. Article 51, Chapter VII, Charter of the United Nations.

24

25

26

27

28

D. Brown, 'Use of Force Against Terrorism After September 11th: State Responsibility, SelfDefence, and Other Responses', (2003) 11 Cardozo J. Int'l. & Comp. L. 1, 37.
29

J. Lobel, 'The Use of Force to Respond to Terrorist Attacks: the Bombing of Sudan and Afghanistan', (1999) 24 Yale J. Intl. L. 537; cf. A. Guiora, 'Global Perspectives on Counterterrorism', (2007).

30

See Israel Committee Against Torture in Israel v Government of Israel, HCJ 769/06, citing A. Guiora, 'Targeted Killing as Active Self-Defence', (2004) 36 CWRU JIL 319 (2004).
31

It cannot be over-emphasised just how complex the relationship between received intelligence information and operational decisions is. Participation in numerous operational planning meetings with senior IDF commanders seeking to 'translate' received intelligence to information capable of justifying operational decisions has convinced me beyond all doubt that this is one of the most difficult aspects of counterterrorism. It cannot be sufficiently emphasised how much care and caution must be exercised before determining the viability and reliability of received information. While commanders are not prone to engage in doubt; the burden of successfully 'translating' cannot nor should be underestimated.
32

Lobel, loc. cit., footnote 28.

33

See generally F. A. Biggio, 'Neutralizing the Threat: Reconsidering Existing Doctrines in the Emerging War on Terrorism', (2002) 34 CWRJIL 1; M. Halberstam, 'The U.S. Right to Use Force in Response to the Attacks on the Pentagon and the World Trade Center', (2004) 11 Cardozo J. Int'l. & Comp. L. 851 at 852-855; E. A. Palmer, 'Democratic Intervention: U.S. Involvement in Small Wars', (2003) 22 Penn St. Int'l. L. Rev. 313 at 338.
34

Israel Strikes Base Inside Syria, CBS News, 5 Oct. 2003, available at <http://www.cbsnews.com/stories/2003/10/05/world/main576590.shtml>.
35

Secretary-General Strongly deplores Israeli Air Strike on Syrian Territory, Press Release, SG/SM/8918, 6 Oct. 2003, available at <http://www.un.org/News/Press/docs/2003/sgsm8918.doc.htm>, 'Israeli Jets Attack Site Inside Syria', The Seattle Times, 6 October 2003, at A1.
36

'Security Council Meets on Israeli Attack in Syria', http://CNN.com, 5 October 2003, available at <http://www.cnn.com/2003/WORLD/meast/10/05/mideast/index.html> (last accessed 17 Dec. 2006).
37

See M. Bazzi, 'Villagers: Bombed Site Abandoned/Syrians say camp attacked by Israel Empty', Newsday, 9 October 2003; R. Nessman, 'Israeli and U.S. Officials Claim Camp in Syria was Active Militants Said Base Empty Before Attack', Seattle Times, 11 October 2003; S. E. Smith, 'International Law: Blaming Big Brother: Holding States Accountable for the Devastation of Terrorism', (2003) 56 Okla. L. Rev. 735 at 774 fn. 329; A. S. Weiner, 'The Use of Force and Contemporary Security Threats: Old Medicine for New Ills?', (2006) 59 Stan. L. Rev. 415 at 436.
38

According to media reports, on 6 September 2007 Israeli fighter planes attacked a 'nuclear target' in Syria. While details of the attack are largely unknown and a matter of speculation, the justification for such a raid would in all likelihood be articulated as 'self-defence based on the analysis of available intelligence information', M. Mazzetti and H. Cooper, 'U.S. Confirms Israeli Strikes Hit Syrian Target Last Week', N. Y Times, 9 December 2007, A12.
39

L. Martinez, 'September 11th, Iraq, and the Doctrine of Anticipatory Self-Defence', (2003) 72 U. Mo. Kan. City L. Rev. 123 at 143.
40

See, e.g., J. Bennet, 'U.S. Fury on 2 Continents: The Overview; U.S. Cruise Missiles Strike Sudan and Afghan Targets Tied to Terrorist Network', N .Y. Times, 21 August 1998, A1; Eckert and Mofidi, loc. cit., fn. 5, pp. 142-145 (discussing whether state based action solely in response to acts of terrorism is a violation of international law).
41

See J. Bennet, ibid.; D. Johnston, 'No Chemical Threat Found at Bombed Plant in Sudan,' N. Y. Times, 14 February 1999, 42; J. Risen and D. Johnston, 'Experts Find No Arms Chemicals at Bombed Sudan Plant,' N. Y. Times, 9 February 1999, A3; S. L. Myers and T. Weiner, 'After the Attack: The Chemicals; Possible Benign Use is Seen for Chemical at Factory in Sudan,' N. Y. Times, 27 August 1998, A1.
42

This resolution passed on 12 September 2001. This resolution passed on 28 September 2001. UN Security Council Resolution 1368 (emphasis added). UN Security Council Resolution 1373 (emphasis added).

43

44

45

46

See C.A. Ward, 'Building Capacity to Combat International Terrorism: The Role of the United Nations Security Council', (2003) 8 JCSL 289 at 293394 (discussing the effects of UN resolutions 1368 and 1373); see also M. E. O'Connell, 'Lawful Self-Defence to Terrorism', (2002) 63 U. Pitt. L. Rev. 889 at 892 (emphasising that the operative part of the Resolution was to mandate economic sanctions and

emphasise that the attacks were significant enough to trigger self-defence).


47

G. E. Maggs, 'The Campaign to Restrict the Right to Respond to Terrorist Attacks in Self-Defence Under Article 51 of the U.N. Charter and What the United States can do about it', (2006) 4 Regent J. Int'l. L. 149 at 165166.
48

See C. Bierauer, 'Munich Remembered: 1972 Attack Led to Increased Security', CNN, available at <http://www.cnn.com/US/9607/27/munich.remembered/> (last accessed 3 January 2008).
49

The Israeli foreign intelligence service responsible both for gathering intelligence information and operational counterterrorism.
50

The operation, 'Wrath of God' targeted those responsible both for planning and executing the attack.
51

According to media reports those killed were not known to be planning additional acts. If so, the operation would be a violation of international law which does not allow for revenge based State operations. However, according to the then head of the Mossad, Zvi Tsur, the PLO operatives killed in the operation were planning additional attacks against Israel targets. If so, then the operation would conceivably fall under the rubric of anticipatory self-defence (rather than revenge-predicated). Tsur's comments (made in an interview with the Israeli media) have neither been confirmed nor denied by others involved in the operation.
52

This is a term of art I use to describe the decision to 'translate' intelligence information into operational 'reality.'
53

Innocent individuals in counterterrorism fall into two categories: innocent victims of acts of terrorism and victims of collateral damage.
54

Take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects; Protocol Additional to the 1949 Geneva Conventions, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) Article 57 (2).
55

These considerations include, but are not limited to: who is the intended target, what are (if any) the alternatives, what is the risk of collateral damage, is the proposed action proportional to the risk posed by the targeted individual.
56

See J. C. Moriarty, 'While Dangers Gather: The Bush Pre-emption Doctrine, Battered Women, Imminence, and Anticipatory Self-Defence', (2005) 30 N.Y.U. Rev. L. & Soc. Change 1; R. A. Rosen, 'On Self-Defence, Imminence and Women Who Kill Their Batterers', (1993) 71 N.C. L. Rev. 371 at 378-390; M. Skopets, 'Battered Nation Syndrome: Relaxing the Imminence Requirement of Self-Defence In International Law', (2006) 55 Am. U.L. Rev. 753 at 775777; E. Volokh, 'Self-Defence, Prohibited Experimental Therapies, and Payment for Organs', (2007) 120 Harv. L. Rev. 1813 at 18231824; S. Wallace, 'Beyond Imminence; Evolving International Law and Battered Women's Rights to Self-Defence', (2004) 71 U. Chi. L. Rev. 1749 at 176062.
57

See J. C. Duncan, 'Primer on the Employment of Non-Lethal Weapons', (1998) 45 Naval L. Rev. 1 at 4555; L. Martinez, 'September 11th, Iraq and the Doctrine of Anticipatory Self-Defence', (2003) 72 UMKC L. Rev. 123 at 185187; M. S. Martins, 'Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering', (1994) 143 Mil. L. Rev. 3 at 6880; M. Nabati, 'International Law at a Crossroads: Self-Defence, Global Terrorism, and Pre-emption (A Call to Rethink the Self-Defence Normative Framework)', (2003) 13 Transnat'l L. & Contemp. Probs. 771 at 797799; A. S. Weiner, loc. cit., fn. 36, pp. 437445.
58

See C. Pence, 'Reform in the Rising Sun: Koizumi's Bid to Revise Japan's Pacifist Constitution', (2006) 32 N.C. J. Int'l. L. & Com. Reg. 335 at 365 (stating that 'Japanese forces are authorized to return fire when an unavoidable and reasonable cause exists for use of weapons to protect lives and bodies of themselves or those who are with them (internal quotation marks omitted)); Defence and Justification, Model Jury Instructions for Use in the District Court Volume II Instruction 6.01 (Handbook Supplement),MJII MA-CLE S-6.01-1 (2003); but see L. Martinez, 'September 11th, Iraq and the Doctrine of Anticipatory Self-Defence', (2003) 72 UMKC L. Rev. 123 at 167 (arguing that 'State A must satisfy each of the elements on the basis of clear, unequivocal and convincing evidence, or 'clear, cogent and convincing' evidence, and more than a reasonable suspicion is required.').
59

See S. B. Roosa, 'Rules of Engagement for Armed Standoffs and the Last Full Measure of Devotion: Should Sedition be a Factor in the Use of Deadly Force?', (1996) 28 Rutgers L. J. 229 at 231 (explaining that in Tennessee v. Garner which outlines the Fourth Amendment 'objective reasonableness' standard for justifying the use of deadly force to apprehend a fleeing suspect. Under Garner, for a law enforcement officer to be justified in using deadly force, other than for self-defence purposes, there

must be probable cause that the suspect 'poses a threat of serious physical harm,' and the deadly force must be 'necessary to prevent escape.' (internal footnotes omitted)); J. C. Yoo and J. C. Ho, 'The Status of Terrorists', (2003) 44 Va. J. Int'l. L. 207 at 208.
60

Possible measures include moving back (retreat), mollifying the fist (negotiation), getting into a boxers crouch (self-defence) or waiting (passive, non-resistance).
61

Through sources (HUMNIT), intercepted conversations (SIGNIT) or open sources.

62

On 7 August 1998, 9 were killed and over 70 were wounded (J. Perlez, 'Bombings in East Africa: In Dar Es Salaam; Investigators in Tanzania Study Videocamera and Water Truck Belonging to the Embassy,' N. Y. Times, 10 August 1998, A8.
63

On 8 August 1998, 190 were killed and over 5,000 wounded (T. Weiner, 'Bombings in East Africa: The Overview; Experts Starting Search for Clues in Kenya Bombing' N.Y. Times, 10 August 1998, A1.
64

See J. Bennet, 'U.S. Fury on 2 Continents: The Overview; U.S. Cruise Missles Strike Sudan and Afghan Targets Tied to Terrorist Network,' N. Y. Times, 21 August 1998, A1.
65

See Eckert and Mofidi, loc. cit., fn. 5, pp. 142145 (discussing whether state based action solely in response to acts of terrorism is a violation of international law).
66

See S. L. Myers & T. Weiner, 'After the Attack: The Chemicals; Possible Benign Use is Seen for Chemical at Factory in Sudan,' N. Y. Times, 27 August 1998, A1 (1998).
67

See Johnston, loc. cit., fn. 40; Risen and Johnston, loc. cit., fn. 40.

68

See M. Lacey, 'Self-Defence or Self-Denial: The Proliferation of Weapons of Mass Destruction', (2000) 10 Ind. Int'l. & Comp. L. Rev. 293 at 308314 (tracing the concept of juris ad vitae, the focus on 'the state's affirmative responsibility to protect its citizens both at home and abroad from lethal force' through history and applying it to the present day.).
69

See F. N. Baldwin, Jr., 'The Rule of Law, Terrorism, and Countermeasures Including the USA Patriot Act of 2001', (2004) 16 Fla. J. Int'l. L. 43; E. J. Flynn, 'The Security Council's Counter-Terrorism Committee and Human Rights', (2007) 7 Hum. Rts. L. Rev. 371 at 374478; J. Hafetz, 'Vindicating the Rule of Law', (2007) 31 Fletcher F. World Aff. 25 at 2527.
70

See T. Gerety, 'The War Difference: Law and Morality in Counter-Terrorism', (2005) 74 U. Cin. L. Rev. 147; M. D. Keilsgard, 'Human Rights Approach to Counter-Terrorism', (2006) 36 Cal. W. Int'l L. J. 249.
71

Effectiveness is a policy term that decision makers prefer avoiding because its use requires defining. Nevertheless, mature political discourse demands such a discussion; otherwise terms will be bandied about without accountability and responsibility leading to the deaths of those called upon to implement undefined polices; in order to contribute to the debate I suggest the following definition: operational counterterrorism is effective if the terrorist infrastructure suffers serious damage, thereby preventing a particular, planned attack from going forth and postponing or impacting plans for future attacks.
72

Operational reality is a term of art that reflects an understanding that decisions (either made by commanders or decision makers) affect numerous lives (soldiers and civilians alike) and that death is literally 'around the corner.' Furthermore the term reflects a conviction that discussions such as this article must be rooted in the ground (call it the academic version of 'boots on the ground'); otherwise, its ability to impact the debate will be inherently limited.
73

See A. Barak, 'Foreword: A Judge on Judging: The Role of the Supreme Court in a Democracy', (2002) 116 Harv. L. Rev. 16 at 39.
74

See W. Bradford, 'Barbarians at the Gates: A Post-September 11th Proposal to Rationalize the Laws of War', (2004) 73 Miss. L. J. 639; J. D. Reynolds, 'Collateral Damage in the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground', (2005) 56 A.F.L. Rev. 1 at 9295.
75

See R. J. Galvin, 'The ICC Prosecutor, Collateral Damage and NGOS: Evaluating the Risk of a Politicized Prosecution', (2005) 13 U. Miami Int'l. & Comp. L. Rev. 1 at 4648; J. R. Heaton, 'Civilians at War: Reexamining the Status of Civilians Accompanying the Armed Forces', (2005) 57 A.F. L. Rev. 155 at 182185.
76

See J. G. Gardam, 'Proportionality and Force in International Law', (1993) 87 AJIL 391 at 400; W. H. Parks, 'Air War and the Law of War', (1990) 32 A.F. L. Rev. 1 at 174; W. H. Parks, 'Lessons from the

1986 Libya Airstrike', (2002) 36 New Eng. L. Rev. 755 at 761.


77

This discussion is largely predicated on my professional experiences; needless to say the facts are 'fudged' but the essencehopefullyhas been sufficiently preserved.
78

One can mentally prepare for such an occurrence; however, the reality of the moment is something one cannot prepare for.
79

See R. E. Barkow, 'Separation of Powers and the Criminal Law', (2006) 58 Stan. L. Rev. 989; K. L. Wainstein, 'Judicially Initiated Prosecution: A Means of Preventing Continuing Victimization in the Event of Prosecutorial Inaction', (1988) 76 Cal. L. Rev. 727.
80

How much intelligence and what intelligence will be 'enough'? This question was considered but the answer is that the exact amount is unquantifiable. This paper does not propose to quantify the amount of intelligence that will be enough for the court to sign off, because there is no practical answer to that question.