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Sean D. Murphy, Terrorism and the Concept of Armed
Attack in Article 51 of the U.N. Charter, 43 Harv.
Int'l L.J. 41 (2002)

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 VOLUME 43, NUMBER 1, WINTER 2002

Terrorism and the Concept of

"Armed Attack" in Article 51 of the
U.N. Charter

Sean D. Murphy*

I. INTRODUCTION

On September 11, 2001, nineteen persons of non-U.S. nationality

boarded four U.S. commercial passenger jets in Boston, Washington, and
Newark and, once airborne, allegedly hijacked the aircraft and crashed them
into the World Trade Center, the Pentagon, and the Pennsylvania country-
side.' Thereafter, the United States confirmed information that detailed cer-
tain evidence that connected these people to a terrorist group based in Af-2
ghanistan (Al Qaeda) and headed by a Saudi expatriate (Osama bin Laden).
The United States demanded that the de facto government of Afghanistan
(the Taliban) turn over the leaders of Al Qaeda to the United States, close all
terrorist training camps in Afghanistan, and provide the United States with
full access to the camps to confirm their closure. The Taliban declined to do
so. 3 On October 7, the United States informed the U.N. Security Council
that it was exercising its "inherent right of individual and collective self-
defense" by actions "against Al Qaeda terrorist training camps and military
4
installations of the Taliban regime in Afghanistan." On the same day, the

* Associate Professor, George Washington University

1. See Michael Grunwald, Terrorists Hijack 4 Airliners, Destroy World Trade Center, Hit Pentagon; Hun-
dreds Dead, WASH. PosT, Sept. 12, 2001, at Al; David Firestone & Dana Canedy, EB.L Documents Detail
the Movements of 19 Men Believed to Be Hijackers, N.Y TIMEs, Sept. 15, 2001, at A3.
2. See Press Release, 10 Downing Street Newsroom, Responsibility for the Terrorist Atrocities in the
6 6
United States (Oct. 4, 2001), http://www.number-10.gov.uk/news.asp?Newsld=2 8 ; David E. Sanger,
White House Approved DataBlairReleased, N.Y.TimEs, Oct. 6, 2001, at B6.
3. Although the United States did not recognize the Taliban regime as the government of Afghani-
stan, and therefore had no diplomatic relations with the Taliban, the U.S. demands and the Taliban's
rejection of those demands were communicated through the government of Pakistan. See Rajiv
Chandrasekaran, Taliban Refuses to Surrender bin Laden: U.S. Develops Options for Military Action, WASH.
PosT, Sept. 19, 2001, at Al. Further, President Bush issued the demands in a widely reported speech to a
joint session of the U.S. Congress. See President George W. Bush, Address to a Joint Session of Congress
and the American People, Washington, D.C. (Sept. 20, 2001), http://www.whitehouse.govlnewslreleasesl
2001/09/20010920-8.html [hereinafter Address to a Joint Session]. Se alsoJohn F. Harris & Mike Allen,
PresidentDetails GlobalWar On Terroristsand Supporters,WASH. PoST, Sept. 21, 2001, at A1.
4. Letter from the Permanent U.N. Representative of the United States to the President of the U.N.
Security Council (Oct. 7, 2001), U.N. Doc. S/2001/946 (Oct. 7, 2001) [hereinafter U.S. Letter] (noting
 HarvardInternationalLaw Journal / Vol. 43

United States and the United Kingdom launched cruise missiles and long-
range bombers against Al Qaeda and Taliban targets in Afghanistan.5
The incidents of September 11 and the U.S. response raise several impor-
tant issues under international law regarding the use of force. Because the
United States asserted that its use of force in Afghanistan constituted a
lawful exercise of self-defense, the first issue becomes whether the require-
ment in Article 51 of the U.N. Charter that there first be an "armed attack"
against the United States has been met. More specifically, is there an "armed
attack" within the meaning of Article 51 when a terrorist organization pro-
vides funds and other support to individuals to travel to a country, enabling
them to hijack aircraft of that country's registration, and in turn to crash the
aircraft into buildings in that country?

II. BASIC USE OF FORCE NoRMs

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

All Members shall refrain in their international relations from the

threat or use of force against the territorial integrity or political inde-
pendence of any state, or in any other manner inconsistent with the
6
Purposes of the United Nations.

The broad term "use of force"-as opposed to the term "war," as used in the
Kellogg-Briand Pact of 1928 7 -reflected a desire to prohibit transnational
armed conflicts generally, not just conflicts arising from a formal state of
war. As such, Article 2(4) is generally viewed as outlawing any trans-
boundary use of military force, including force justified by reference to the
various doctrines developed in the pre-Charter era of forcible self-help, repri-
sal, protection of nationals, and humanitarian intervention. 8 To the extent
that there is a need to refer to the negotiating history of the U.N. Charter,
that history indicates that Article 2(4) was intended to be a comprehensive

that it had been the victim of "massive and brutal attacks" that were "specifically designed to maximize
the loss of life; [resulting] in the death of more than 5,000 persons, including nationals of 81 countries,
as well as the destruction of four civilian aircraft, the World Trade Center towers and a section of the
Pentagon").
5. See Patrick E. Tyler, U.S. and Britain Strike Afghanistan, Aiming at Bases and Terrorist Camps: Bush
Warns "Taliban Will Pay a Price," N.Y.TsmEs, Oct. 8, 2001, at Al.
6. U.N. CHARTER art. 2, para. 4
7. See Treaty Between the United States and Other Powers Providing for the Renunciation of War as
an Instrument of National Policy, Aug. 27, 1928, 46 Star. 2343, 94 L.N.T.S. 57. Article 1 of the Pact
provides: "The High Contracting Parties solemnly declare in the names of their respective peoples that
they condemn recourse to war for the solution of international controversies, and renounce it as an in-
strument of national policy in their relations with one another."
8. See IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 361-63 (1963). For
a discussion of the historical development of the use of force doctrine, see HENRY WHEATON, ELEMENTS
OF INTERNATIONAL LAW § 290 (G. Wilson ed., Carnegie 1936) (1836).
2002 / Terrorismand the Concept of "ArmedAttack"

9
prohibition on the use of force by one state against the other. As the Inter-
national Court of Justice has stated: "Between independent states, respect for
0
territorial sovereignty is an essential foundation of international relations."'
In addition to this prohibition on the use of force, there is an obligation
under customary international law not to intervene in the affairs of another
state, including through the use of armed force. In particular, the law on
non-intervention has been shaped since the U.N. Charter by three promi-
nent General Assembly resolutions, which provide that armed intervention
by a state is contrary to the promotion of fundamental human rights and
self-determination. One resolution, entitled the "Declaration on the Inad-
missibility of Intervention in the Domestic Affairs of States and the Protec-
tion of their Independence and Sovereignty," provides in relevant part:

1. No State has the right to intervene, directly or indirectly, for any rea-
son whatever, in the internal or external affairs of any other State.
2. Consequently, armed intervention and all other forms of interference
or attempted threats against the personality of the State or against its
political, economic, and cultural elements are condemned ....
3. The strict observance of these obligations is an essential condition to
ensure that nations live together in peace with one another, since the
practice of any form of intervention not only violates the spirit and let-
ter of the Charter of the United Nations but also leads to the creation of
situations which threaten peace and security."

9. See THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 117-18 (Bruno Simma ed., 1994);
LA CHARTE DES NATIONS UNIFS: COMENTAIRE ARTICLE PAR ARTICLE 125 (J. Cot & A. Pellet eds., 2d
ed. 1991) (arguing, however, that actions that have humanitarian goals, or the goal ofsaving the lives of a
state's nationals in danger abroad may be legitimate); LELAND GOODRICH ET AL., CHARTER OF THE
UNITED NATIONS: COMMENTARY AND DOCUMENTS 44-45 (3d ed. 1969); C. Humphrey Waldock, The
Regulation of the Use of Force by Individual States in InternationalLaw, 81 RECUEIL DES COURs 451, 493
(1952) (noting, however, that Article 2(4) leaves open the possibility for military actions "not calculated
to impair territorial integrity or political independence"); BROWNLE, supra note 8, at 112-13; OSCAR
SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE, 112-13 (1991) (discussing, however, six
exceptions to the comprehensive prohibition on use of force).
10. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 35 (Apr. 9).
11. G.A. Res. 2131, U.N. GAOR, 20th Sess., Supp. No. 14, at 11, U.N. Doc. A/6014 (1966). The
second resolution, to which was annexed a "Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation Among State in Accordance with the Charter of the United Na-
tions," provides in part:
No State or group of States has the right to intervene, directly or indirectly, for any reason whatever,
in the internal or external affairsof any other State. Consequently, armed intervention and all other
forms of interference or attempted threats against the personality of the State or against its political,
economic, and cultural elements are in violation of international law.
G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, Annex, at 121, U.N. Doc. A/8028 (1971). The
third resolution, entitled "Definition of Aggression," enumerates various acts that constitute "aggres-
sion," including the "invasion or attack by the armed forces of a State of the territory of another State."
G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, Annex, at 142, U.N. Doc. A/9631 (1975)
[hereinafter U.N. Definition of Aggression).
 HarvardInternationalLaw Journal / Vol. 43

There are basically two exceptions in the U.N. Charter to the prohibition
on the use of force contained in Article 2(4) and customary rules on non-
intervention. First, states may use force when so authorized by the U.N.
Security Council pursuant to its powers under Chapter VII of the Charter.' 2
While the Security Council passed two resolutions prior to the U.S. military
action against Afghanistan, 13 in neither resolution did the Security Council
authorize states to use force against Afghanistan. Second, states may use
force in self-defense pursuant to Article 51, which provides:

Nothing in the present Charter shall impair the inherent right of indi-
vidual or collective self-defense if an armedattack occurs against a Mem-
ber of the United Nations, until the Security Council has taken meas-
ures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defense shall be
immediately reported to the Security Council and shall not in any way
affect the authority and responsibility of the Security Council under the
present Charter to take at any time such action as it deems necessary in
order to maintain or restore international peace and security. (emphasis
14
added)

While there have been spirited debates about the right to engage in "an-
ticipatory self-defense," most governments and scholars,' 5 and the Interna-
tional Court of Justice, 16 appear to agree that self-defense is permitted under
Article 51 only when there has been an "armed attack." Yet the type of action
that constitutes an "armed attack" has been less studied. In Nicaragua v.
U.S., the International Court of Justice regarded an "armed attack" as occur-
ring when regular armed forces cross an international border, or when a state
sends "armed bands, groups, irregulars or mercenaries which carry out acts
of armed force against another State of such gravity as to amount to" an ac-
tual armed attack by regular forces. 17 By contrast, the Court found that "as-
sistance to rebels in the form of the provision of weapons or logistical or
other support" did not constitute an armed attack. Such assistance could be
regarded as an unlawful threat or use of force, or intervention in the internal
or external affairs of a state, but not as an "armed attack" against that state.' 8
Applying the facts of the case to the law, the Court found that the United
States had violated use of force norms 19 by the mining of Nicaraguan ports,

12. U.N. CHARTER ch. VII.

13. S.C. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg., U.N. Doc. S/RES/1368 (2001) [hereinafter
S.C. Res. 13681; S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., U.N. Doc. S/RES/1373 (2001)
[hereinafter S.C. Res. 1373].
14. U.N. CHARTER art. 51.
15. See SCHACHTER, supra note 9, at 150.
16. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 L.CJ. 14, 103, 110 (June 27).
17. Id. at 103 (quoting from the U.N. Definition of Aggression, supra note 11).
18. Id.
19. Due to a reservation contained in the U.S. acceptance of the Court's jurisdiction, the Court techni-
cally was not passing upon U.S. obligations under the U.N. Charter, but rather on customary interna-
2002 / Terrorism and the Concept of "Armed Attack"

the destruction of Nicaraguan oil installations, and the training, arming,

and equipping of Nicaraguan rebels. 20 Further, the Court found that the
United States was not acting in collective self-defense (by assisting El Salva-
dor) because the "intermittent flow of arms ... routed via the territory of
Nicaragua to the armed opposition" in El Salvador, even if imputable to the
government of Nicaragua, was not "on a scale of any significance;" even if it
were, "the Court is unable to consider that in customary international law,
the provision of arms to the opposition in another State constitutes an armed
attack on that State. '21 The Court also found probative the fact that the
United States failed to notify 22the Security Council that it was exercising a
right of collective self-defense.

III. WHEN IS A TERRORIST ACT AN "ARMED ATTACK"?

If the NicaraguaCourt's decision still stands, then in an analysis under Ar-

ticle 51, one must consider the scale of actions that might constitute an
armed attack. At the low end of the scale (below the "armed attack" thresh-
old) are actions such as the provision of arms to the nationals of a state who
are seeking to overthrow their government. At the high end of the scale
(above the threshold constituting an "armed attack") are actions such as ar-
mies crossing borders, as well as a state sending armed irregulars who "carry
out acts of armed force against another State of such23sufficient gravity as to
amount to an actual armed attack by regular forces.
Where do the incidents of September 11 fall on this scale? The argument for
placing them on the low end of the scale might be that the hijackers were not
the type of "armed bands, groups, irregulars or mercenaries" that the Nicaragua
Court seemed to have in mind. Rather, they were small groups of persons, who
did not in any sense operate as normal military or paramilitary units, and who
were engaged in isolated incidents. 24 Further, they apparently were armed with
nothing more than "box cutters" (i.e., Exacto knives), not weapons one would
normally associate with military or paramilitary units. To the extent that we
must seek to equate their actions "with an actual armed attack by regular
forces," these persons did not engage in an armed attack in any conventional
sense. Rather, these aliens boarded civilian aircraft in the United States, hi-
jacked the aircraft, and crashed them in the United States. In short, the argu-
ment would be that this was not an "armed attack" but, rather, a use of force or

tional law. For all intents and purposes, however, the Court's decision is regarded as reflecting its views
on the use of force under the Charter as well.
20. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.CJ. 14, 118 (June 27).
21. Id. at 119.
22. Id. at 121.
23. Id. at 103.
24. See Louis HENKIN, INTERNATIONAL LAW: POLITICS AND VALUaS 126 (1995) ("It is difficult to
make an 'armed attack' out of a limited, isolated terrorist attack or even a few sporadic ones. It is difficult
to accept a general bombing as a 'necessary' and 'proportional' response to a terrorist attack. It is difficult
to justify such a response if one balances competing state values or even competing human values.").
 HarvardInternationalLawJournal / Vol. 43

intervention below the threshold of armed attack, which is perhaps better char-
acterized as a conventional (albeit heinous) criminal act. There are a series of
"terrorist" conventions that regard as criminal offenses acts that jeopardize
safety
on board aircraft, 25 hijacking of aircraft,26 sabotage of aircraft, 27 and attacks
against state or "infrastructure" facilities using explosive devices. 28 The purpose
of those conventions is to create procedures for submitting to prosecution an of-
fender and his/her accomplices (as well as those who organize or direct offend-
ers). In this regard, it is noteworthy that in the aftermath of the September 11
incidents, the General Assembly condemned the "heinous acts of terrorism,"
but neither characterized those acts as "attacks" nor recognized a right to re-
spond in self-defense. Instead, the General Assembly called for "international
cooperation to bring to justice the perpetrators, organizers and sponsors" of the
incidents, a formulation that suggests that the actions were regarded more as
conventional crimes than as an armed attack. 29 Finally, the connections of the
hijackers with Al Qaeda, and of Al Qaeda with the unrecognized government
of the Taliban, remain somewhat obscure. As such, these incidents clearly were
not taken directly by the government of one state against the United States.
Arguably, therefore, the acts are better viewed as conventional crimes by certain
persons, not as a use of force by another state. 30
Prior assertions that terrorist acts constituted an "armed attack" justifying
a robust exercise of self-defense have not met widespread acceptance by the
global community. In 1982, Israel invoked a right of self-defense to justify
an incursion deep into Lebanon for purposes of eliminating the ability of the
Palestine Liberation Organization (PLO) to conduct terrorist actions in
northern Israel, 31 but that justification met with criticism from both the
Security Council 32 and the General Assembly. 33 In 1985, when Israeli planes

25. See Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sept.
14, 1963, 20 U.S.T. 2941, 704 U.N.T.S. 219.
26. See Hague Convention for the Suppression of Unlawfiul Seizure of Aircraft, Dec. 16, 1970, 22
U.S.T. 1641, 10 I.L.M. 133.
27. See Montreal Convention for the Suppression of Unlawfiil Acts Against the Safety of Civil Avia-
tion, Sept. 23, 1971, 24 U.S.T. 565, 974 U.N.T.S. 177.
28. International Convention for the Suppression of Terrorist Bombings, Jan. 9, 1998, S.TREATY
Doc. No. 106-6, 37 I.L.M. 251 [hereinafter Terrorist Bombing Convention].
29. G.A. Res. 1, U.N. GAOR, 56th Sess., 1st plen. mtg., Agenda Item 8 3, U.N. Doc. AIRESI56/1
(2001).
30. See Giorgio Gaja, In What Sense Was There an "Arned Attack"?, European Journal of International
Law Discussion Forum, The Attack on the World Trade Center: Legal Responses, http:llwww.ejil.orgl
forumWTC/ny-gaja.html.
31. See Yehuda Blum, Permanent Representative of Israel to the United Nations, Speech before the
Security Council, U.N. SCOR, 36th Sess., Supp. 21, U.N. Doc. S/PV.2292 (1981). See also Barry Leven-
feld, IsraeliCounter-Fedayeen Tactics in Lebanon: Self-Defense and Reprisal Under Modern InternationalLaw, 21
COLUM. J. TRANSNAT'L L. 1, 5 (1982); Barry Feinstein, The Legality of the Use of Armed Force by Israel in
Lebanon, 20 ISRAEL L. REV.362, 382 (1985).
32. See S.C. Res. 508, U.N. SCOR, 37th Sess., 2374th mtg., U.N. Doc. S/RES/S08 (1982); S.C. Res.
509, U.N. SCOR, 37th Sess., 2375th mtg., U.N. Doc. S/RES/509 (1982); S.C. Res. 517, U.N. SCOR,
37th Sess., 2389th mrg., U.N. Doc. S/RES/517 (1982).
33. See G.A. Res. ES 7/9, U.N. GAOR, 7th Emer. Spec. Sess., 32nd mtg., Agenda Item 5, U.N. Doc.
A/ES-7/L.8 (1982).
2002 / Terrorism and the Concept of "Armed Attack"

bombed PLO headquarters in Tunisia as a response to PLO terrorist attacks,

the Security Council condemned the action by a vote of fourteen to zero (the
United States abstained). 34 In 1986, after a bomb exploded in a Berlin dance
club frequented by U.S. servicemen, leading to the death of two Americans
and the wounding of several others, the United States claimed a right of self-
defense in bombing targets in Libya. 35 Although the General Assembly con-
demned the U.S. bombing, 36 a U.N. Security Council resolution to that ef-
fect failed owing to the negative votes of three of the37permanent members
(France, the United Kingdom, and the United States).
Yet there is a more convincing argument that the September 11 incidents
constituted an "armed attack" against the United States. First, the scale of
the incidents was certainly akin to that of a military attack. The destruction
wrought was as dramatic as the Japanese attack on Pearl Harbor on Decem-
ber 7, 1941: the complete destruction of famous twin towers in the heart of
the United States' financial center and severe damage to the nerve center of
the United States' military. Further, the death toll from the incidents was
worse than Pearl Harbor; to find U.S. deaths on the same scale in a single
day requires going back to the U.S. Civil War. The repercussions from the
incidents were severe, ranging from intense fear across the United States, to
the temporary halt to all civilian air traffic, to the closure of the New York
stock exchange for six days. Even after it reopened, the U.S. stock market
38
experienced the largest point drop in its history.
Second, the United States immediately perceived the incidents as akin to
that of a military attack. President Bush declared a national emergency and
39
called to active duty the reserves of the U.S. armed forces. On September
18, the U.S. Congress adopted a joint resolution authorizing the President
to use "all necessary and appropriate force against those nations, organiza-

34. See S.C. Res. 573, U.N. SCOR, 40th Sess., 2615th mtg., U.N. Doc. S/RES/573 (1985).
35. See Marian Nash Leich, Contemporary Practice of the United States Relating to InternationalLaw, 80
AM. J. INT'L L. 612, 633-36 (1986); Gregory Francis Intoccia, American Bombing of Libya: An Interna-
tionalLegalAnalysis, 19 CASE W. REs. J. INT'L L. 177 (1987).
36. See G.A. Res. 38, U.N. GAOR, 41st Sess., Supp. No. 53, at 34, U.N. Doc. A/RES/41/53 (1986).
37. See 1986 U.N.Y.B. 253-54, U.N. Sales No. E.90.I.1 (1986). A possible counter-example to this
practice might be the muted global reaction to the June 1993 cruise missile attack against Iraq, which
the United States undertook in response to an Iraqi-backed attempt to assassinate former President
George Bush during his visit to Kuwait in April 1993. See Snuart G. Baker, Note, Comparing the 1993
U.S. Airstrike on Iraq to the 1986 Bombing of Libya: The New Interpretationof Article 51, 24 GA. J. INT'L &
Comp. L. 99 (1994). However, the extensive global intrusion into Iraqi sovereignty after its 1990 inva-
sion of Kuwait, including the deployment of U.N. peacekeepers in Iraqi territory along its border with
Kuwait, the establishment of "no-fly zones" in northern and southern Iraq, and ultimately the launching
of missile strikes against Iraq for the failure to comply with the U.N. weapons-inspection regime war-
rants caution in viewing the global reaction to the 1993 airstrike as reflecting a general shift in attitudes
about use of force norms. See Sean D. Murphy, ContemporaryPractice of the United States Relating to Interna-
tional Law, 93 AM. J. INT'L L. 471 (1999).
38. See Paul Blustein & Carol Vinzant, Stocks Plummet as Wall Street Reopens, WASH. PosT, Sept. 18,
2001, at Al.
39. See Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sept. 18, 2001); Exec. Order No. 13,223, 66
Fed. Reg. 48,201 (Sept. 18, 2001).
 HarvardInternationalLaw Journal / Vol. 43

tions, or persons he determines planned, authorized, committed, or aided

the terrorist attacks that occurred on September 11, 2001." 40 In his speech
to Congress on September 20, President Bush declared: "On September
11th, enemies of freedom committed an act of war against our country. 41 As
noted above, the United States reported to the U.N. Security Council that it
was the victim of armed attacks by Al Qaeda, which were made possible by
the Taliban, and that the United States was responding in self-defense. 42
Third, the U.S. interpretation of the incidents as an armed attack was
largely accepted by other nations. While the two U.N. Security Council
resolutions did not authorize the use of force by the United States, they both
affirmed, in the context of such incidents, the inherent right of individual
and collective self-defense and the need "to combat by all means" the
"threats to international peace and security caused by terrorist acts. '4 3
On
September 12, the North Atlantic Council agreed that, if it could be deter-
mined that the incidents were directed from abroad against the United
States, "it shall be regarded as an action covered by Article 5 of the Wash-
ington 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." 44 On October 2, after being briefed on the known facts by the
United States, the North Atlantic Council determined that the facts were
"clear and compelling," and "the attack against the United States
on Sep-
tember 11 was directed from abroad and shall therefore be regarded as an
action covered by Article 5 of the Washington Treaty .... -45 Similarly, the
Organization of American States meeting of ministers of foreign affairs re-
solved:

That these terrorist attacks against the United States of America are at-
tacks against all American states and that in accordance with all the
relevant provisions of the Inter-American Treaty of Reciprocal Assis-
tance (Rio Treaty) and the principal of continental solidarity, all States
Parties to the Rio Treaty shall provide effective reciprocal assistance to
address such attacks and the threat of any similar attacks against any
American state, and to maintain the peace and security of the conti-
46
nent.

40. Authorization for Use of Military Force, Sj. Res. 23, 107th Cong., 115 Star. 224 (2001).
41. See Address to a Joint Session, supra note 3.
42. See U.S. Letter, supra note 4.
43. S.C. Res. 1368, supra note 13, pmbl.; S.C. Res. 1373, supra note 13, pmbl.
44. NATO Press Release No. 124, Statement by the North Atlantic Council (Sept. 12, 2001), http:I/
www.nato.int/docu/pr/2001/pOl-124e.hrm.
45. Secretary General Lord Robertson, Statement at NATO Headquarters (Oct. 2, 2001), http://
www.nato.int/docu/speech/2001/sOl 1002a.hrm.
46. Terrorist Threat to the Americas, Res. 1, Twenry-Fourth Meeting of Consultation of Ministers of
Foreign Affairs Acting as Organ of Consultation In Application of the Inter-American Treaty of Recipro-
cal Assistance, OEA/Ser.F/1I.24, RC.24/RES.1/01 (Sept. 21, 2001).
2002 / Terrorism andthe Concept of "Armed Attack"

When the United States finally embarked on its bombing campaign in

Afghanistan, it received support from various quarters that this action was
an appropriate exercise of the right of self-defense against an armed attack.
The United Kingdom itself directly participated in air strikes against Af-
ghanistan, and access to airspace and facilities was provided not just by
NATO allies, 47 but also by nations such as Georgia, Oman, Pakistan, Qatar,
48
Saudi Arabia, Turkey, and Uzbekistan. Other leading nations, such as
50 5 1
China,49 Egypt, and Russia, announced support for the U.S. campaign.
The fifty-six nations of the Organization for the Islamic Conference called
upon the United States not to extend its military response beyond 52 Afghani-
stan, but made no criticism of military actions against Afghanistan.
Fourth, there is no need to view the September 11 incidents as presenting
a binary choice between being regarded either as a criminal act or as a use of
force amounting to an armed attack. In fact, the incidents can properly be
characterized as both a criminal act and an armed attack. At least since the
establishment of the Nuremberg Tribunal, and certainly under contempo-
rary standards of international law, an act of aggression and a crime against
humanity can be viewed both as criminal acts entailing individual responsi-
bility and as violations of use of force and human rights norms implicating
53
state responsibility.
Fifth, there is some prior state practice supporting the view that terrorist
bombings can constitute an armed attack triggering a right of self-defense.
In 1998, after Al Qaeda sponsored bombings of U.S. embassies in Nairobi,
Kenya, and Dar es Salaam, Tanzania, killing nearly 300 people (including
twelve Americans), the United States invoked its right of self-defense and
launched cruise missiles against training camps in Afghanistan and against a
Sudanese pharmaceutical plant allegedly serving as a chemical weapons fa-
cility. While some states condemned the attacks, others supported them.
Neither the General Assembly nor the Security Council condemned the at-
tacks. The League of Arab States condemned the attack on the Sudan, but

47. See William Drozdiak & Doug Struck, NATO Allies Offer Help for U.S. Military Action, WASH.
POST, Oct. 5, 2001, at A26.
48. See Elaine Sciolino & Steven Lee Myers, Bush Says "Time is Running Out"; U.S. Plans to Act Largely
Alone, N.Y TIMFs, Oct. 7, 2001, at Al; Alan Sipress, Emir Pledges Qatar's Support but Offers Words of Cau-
tion, WASH. PosT, Oct. 5, 2001, at A23; Mark Landler, Philippines Offers U.S. Its Troops And Bases, N.Y
Ti s, Oct. 3, 2001, at A5.
49. See Erik Eckholm, China'sAbout-Face: Supportfor U.S. on Terror,N.Y T[MES, Sept. 30, 2001, at A6.
50. Daniel Williams, Mubarak Backs Strikes by U.S. on Afghanistan, WASH. POST, Oct. 10, 2001, at
A17.
51. See Sharon LaFraniere, Putin Gives U.S. Attacks A Strong Endorsement, WASH. POST, Oct. 9, 2001, at
A16.
52. Daniel Williams, Islamic Group Offers U.S. Mild Rebuke, WASH. PoST, Oct. 11, 2001, at A21.
53. This Essay does not address whether for policy reasons it would be preferable to pursue the inci-
dents as criminal acts or as armed attacks requiring a forcible response; nor does it address the fact that
ultimately the United States may end up foreclosing one avenue by pursuing the other (e.g., military
targeting may kill the persons who would otherwise be prosecuted).
 HarvardInternationalLaw Journal / Vol. 43

was silent regarding the attack on Afghanistan. 54 As compared with the in-
cidents discussed above from the 1980s, the global reaction was decidedly
muted.
Finally, the fact that the incidents were not undertaken directly by a for-
eign government cannot be viewed as disqualifying them from constituting
an "armed attack." There is nothing in Article 51 of the U.N. Charter that
requires the exercise of self-defense to turn on whether an armed attack was
committed directly by another state. Indeed, the language used in Article
2(4) (which speaks of a use of force by one "Member" against "any state") is
not repeated in Article 51. Rather, Article 51 is silent on who or what
might commit an armed attack justifying self-defense. The preeminent
precedent regarding self-defense-the 1837 Caroline incident-stands not
just for Secretary of State Webster's proposition that self-defense is only ap-
propriate in cases of necessity ("instant, overwhelming, leaving no choice of
means, and no moment for deliberation"),"5 but also for the proposition that
self-defense is permissible as a reaction to attacks by non-governmental enti-
ties (in that case, support by U.S. nationals for a rebellion in Canada). 56 To
the extent that Article 51 preserves an inherent right of self-defense, that
right prior to the adoption of the U.N. Charter included the right to re-
spond to attacks from wherever they may come.5 7 Moreover, assuming that a
close connection between Al Qaeda and the Taliban does exist, and given the
Taliban's refusal to surrender bin Laden even- in the aftermath of his indict-
ment for the bombings of U.S. embassies in East Africa, it is not difficult to
make a respectable argument that the incidents of September 11 are imput-
able to the de facto government of Afghanistan. In this regard, the recent,
provisionally adopted articles on state responsibility by the International
Law Commission provide a framework for analysis. 58 Depending on the
facts, one might find the de facto government responsible because of the
omissions of its organs or officials in allowing Al Qaeda to operate from Af-
ghanistan even after its known involvement in terrorist acts prior to the Sep-
tember 11 incidents (Articles 2, 4-5), because the de facto government by
default essentially allowed Al Qaeda to exercise governmental functions in
projecting force abroad (Article 9), or because after the September 11 inci-

54. See Sean D. Murphy, ContemporaryPractice of the UnitedStates Relating 1o InternationalLaw, 93 Am.
J. INT'L L. 161, 164-65 (1999).
55. See R.Y Jennings, The Caroline and McLeod Cases, 32 Am. J. INT'L L. 82, 89 (1938) (quoting 61
PARLIAMENTARY PAPERS (1843); 30 BRITISH & FOREIGN STATE PAPERS 193 (1843)).
56. Id. at 82-88.
57. Addressing the customary international law constraints relating to necessity and proportionality is
outside the scope of this Essay. However, those constraints would require first providing an opportunity
to the government hosting a terrorist organization to take the necessary steps to remove the threat, and
would preclude self-defense measures against the military and police forces of a hapless government that
is simply incapable of preventing a terrorist group from operating from its soil. In such a circumstance,
the defensive measures must only target the terrorist group.
58. See International Law Commission, Report on the Work of Its Fifty-Second Session, May 1-June
9, July 1-Aug. 18, 2000, U.N. GAOR, 52d Sess., Supp. No. 10, at 124, U.N. Doc. A/55/10 (2000).
 2002 / Terrorismand the Concept of "Armed Attack"

dents the defacto government declined to extradite Al Qaeda operatives and

thus, in effect, adopted Al Qaeda's conduct as its
own (Article 11). As Mi-
chael Reisman has eloquently stated, "[sitate-sponsored
terrorism is the
most noxious and dangerous of its species, yet
its authors and architects
evade all deterrence and prospect of punishment
if the fiction is that states
are not involved and only their agents are deemed
responsible for the terror-
ism." 59

IV. CONCLUSION
On balance, viewing the September 11 incidents
as constituting an armed
attack is fully consistent with the animating principle
of Article 51, which
was to allow states to exercise an inherent right to
respond to acts that strike
at the heart of a state's national security. While the
notion of "armed attack"
in 1945 no doubt was closely associated with the
idea of armies crossing
borders, the Nicaragua Court recognized in the 1980s
that an armed attack
could arise in other ways, such as the sending of
armed groups into a state.
Today, our appreciation of these non-traditional
means of engaging in an
armed attack must also comprehend the pernicious
methods of terrorist or-
ganizations.
However, the standards embodied in the Nicaragua
Court's scale remain
obscure and will need to develop over time through
state practice and judi-
cial review.
In the aftermath of the September 11 incidents,
the release of bacterial
agents potentially by a foreign terrorist organization
has resulted in fewer
immediate deaths and less property damage than
the September 11 inci-
dents, but has disrupted the functioning of the U.S.
government, fueled fear
across the United States, and perhaps over time will
cause many more deaths
than it already has. Can the United States possibly
be expected not to re-
spond to the source of such actions through resort
to proportionate military
force? While the desire to minimize the transboundary
use of military force
is central to contemporary world order, international
rules that preclude a
state from responding forcibly to extraordinary
threats to its fundamental
security interests-indeed, perhaps when "the very
survival of a State would
be at stake" 6 0 -are destined not to endure.

59. W. Michael Reisman, InternationalLegal Responses

to Terrorism, 22 Hous. J. INT'L L. 3, 39 (1999);
see Luigi Condorelli, The Imputability to States of Acts of
InternationalTerrorism, 19 ISRAEL YB. H.R. 233
(1989); Yoamf DINSTEiN, WAR,AGGRESSION, AND SELF-DEFENSE
attack is not extenuated 182-83 (3d ed. 2001) ("lAin armed
by the subterfuge of indirect aggression or by reliance
real difference between the activation of a country's on a surrogate. There is no
regular armed forces and a military operation carried
out at one remove, pulling the strings of a terrorist
organization (not formally associated with the
gov-
ernmental apparatus.").
60. Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons, 1996 I.C.J. 226, 266
(July 8).