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  5. Use of Force against Terrorists | European Journal of International Law | Oxford Academic

In fact, even reform initiatives set up to study initiatives such as the High Level Panel on Threats, Challenges and Change deny the need for reform. Within the collective security system, the Security Council has reinvented itself and has used its powers creatively. Legal debates about anti-terrorist force bear distinctive features, but by and large fit in with the general development. An increasing number of states considers terrorist activities to be a threat which has to be addressed through multilateral or unilateral action, including by forcible means.

There is still no comprehensive anti-terrorism convention, but special sectoral treaties have mushroomed, and have been complemented by far-reaching anti-terrorism rules enacted as part of secondary United Nations law. To analyse this development in a more nuanced way it is necessary to revisit the three different aspects of the traditional regime — the ban on force, the collective security option, and the exception s allowing for unilateral force.

Very little needs to be said on the ban on force. Notwithstanding the introductory comments just made, in this respect there have been few developments. To begin with, the ban on force still, as 20 years ago, does not prohibit the use of force against terrorists as such, but only in international relations between states. As such it covers the extraterritorial use against terrorists based in another country, but does so only indirectly.

As regards the scope of the prohibition, even though the traditional regime has come under strain, the comprehensive ban on force has not been seriously questioned. Admittedly, in heated exchanges both within and outside the anti-terrorism context , some commentators have rehearsed old arguments about the allegedly limited scope of the prohibition, while others notably in the United States have suggested the Charter system had become obsolete.

International lawyers however seem as unwilling as before to read into Article 2 4 UNC any de minimis exception. Instead, the robust interpretation continues to enjoy the support of the large majority of states and commentators. In contrast, the collective security system has confronted the problem of terrorism; as a consequence, it is today a real possibility that states using force against terrorists should be in a position to do so with the blessing of the Security Council.

This is a result of i the Security Council's renaissance since and ii its active role in the fight against terrorism. As far as the use of force against terrorists is concerned, the new potential has however not been fully used to date iii. Both developments, it is submitted, are fully in line with the text and spirit of the Charter. Especially the second development has made it possible for the Security Council to take a leading role in the fight against terrorism. There are two aspects to this.

First, practice since makes it abundantly clear that acts of terrorism can amount to threats to peace in the sense of Article 39 UNC. Secondly, as far as actual sanctions are concerned, the picture is more nuanced. Of course, once the Security Council has qualified an act of terrorism as a threat to the peace, the road towards sanctions under Articles 41 and 42 UNC is in principle open. Yet the Council has used these provisions rather differently. Its new activism is based on enforcement measures of a non-military character. In fact, with respect to Article 41 UNC, there is very little the Council has not done, and it may have exceeded its competences more than once in the process.

To give just some examples, during the last two decades, as part of a fight against terrorism, the Council has set up a special anti-terrorism committee; it has ordered member states to freeze bank accounts of terror suspects, to prosecute specific terrorist acts, and to extradite terror suspects; and it has even assumed the role of a legislator fast-tracking the usual, and cumbersome, treaty-making process. This does not mean that it has not contemplated military sanctions. Finally, although developments during the last two decades have removed the legal obstacles which might have previously prevented collective action against terrorists, the political hurdles for Security Council sanctions remain the same: And while the consensus among the P5 during the last decade has been astonishing, the issue of military enforcement measures remains sensitive, and agreement cannot be taken for granted.

To sum up, unlike 20 years ago, it is beyond doubt today that the Security Council can authorize military measures against terrorists, and thereby justify the extraterritorial use of force by a state implementing that mandate. To date, however, such military enforcement action has remained a theoretical possibility. Recent practice has clarified that international law permits it, but also shows that it remains at best an exceptional option. The key developments during the last two decades affect the rules governing the unilateral use of force against terrorists.

Unlike with respect to the multilateral option, there has been a considerable body of practice — states exercising force against terrorists have, expressly or by implication, moved beyond the traditional regime. This body of recent practice needs to be briefly surveyed 1 before it can be evaluated, especially in the light of recent jurisprudence 2. As noted above, ever since , states have used force against terrorist threats; yet their practice for a long while was sparse, and typically critically received by the international community.

The last two decades have seen a considerable shift. The number of states which claim a right to take forcible anti-terrorist measures has markedly increased, while the willingness of other states to condemn such measures has decreased. The situations in which force has been used or a corresponding right has been asserted vary considerably, but have almost exclusively been explained as exercises in self-defence.

While initial debates about the conditions of self-defence have ebbed away, over the years there has been growing concern that Operation Enduring Freedom overstretched the limits of self-defence.

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Just as in the past, Israel has remained one of the most ardent supporters of a broad right to self-defence. In , in response to a suicide bombing in Haifa it bombed Palestine camps north of Damascus. There was broad agreement with respect to both conflicts that Israel's use of force had been disproportionate. However, a considerable number of states, especially with respect to the July war, in principle accepted Israel's right to use force against terrorist organizations such as Hamas or Hezbollah.

Israel itself was at pains to attribute Hezbollah's conduct to Lebanon and Syria, but did not claim that these states had controlled and directed Hezbollah's conduct. Furthermore, since the s, Turkey has repeatedly invoked a right to use force against Kurdish PKK bases in northern Iraq.

How terrorists target our cities

Just as with respect to the July War, states stressed the need for reactions to be proportionate, and on that basis criticized the Turkish use of force. Not all of them are well documented, but to support the argument made here, it may be sufficient briefly to refer to the following incidents: In , in response to attacks on US embassies in Kenya and Tanzania, the United States bombarded a pharmaceutical plant in the Sudan allegedly used by terrorists and a terrorist base in Afghanistan. The international community's reaction was mixed, ranging from condemnation especially of the attacks on Sudan to open or tacit approval.

In and again in , Russia asserted a right to respond extraterritorially to Islamic terrorists. In March , Colombian forces moved into Ecuadorian territory in pursuit of rebels belonging to FARC which it considers a terrorist organization. The new trend they reflect is confirmed by statements. Russia's assertion of a broad right to use force extraterritorially has been referred to already.

For that purpose, they have all moved troops into neighbouring states even though these, under the traditional rules of attribution, could hardly be said to have directed or controlled the insurgents. The brief summaries provided in the previous paragraphs of course cannot replace a detailed assessment, but clearly point in one direction: Instead debate has shifted towards issues of necessity and proportionality i. This is particularly clear in the international community's responses to Israel's repeated claims to use self-defence, in particular the July War of While Franck's observation is shared by many commentators, it is much more difficult to assess how recent practice can be fitted into the traditional legal regime.

This is mainly due to two factors. First, the more recent practice affects many central features of the traditional, restrictive approach. Secondly, the new trends emerging in practice are clearly discernable, but may require further consolidation before bringing about a readjustment of the law. This is in particular because recent rulings by the international courts have addressed many aspects of the jus ad bellum and need to be taken into account. The current law thus is in many respects in a state of flux. That said, in at least one respect states and courts have been clear: This aspect needs to be addressed before the challenges to the traditional understanding of self-defence can be evaluated.

The new practice summarized above is marked by its diversity. In addition to repelling attacks, their use of force has typically served non-defensive purposes, notably as a means of retaliation e. Given this diversity, it is interesting to note that, almost inevitably, states seeking to justify their conduct have invoked the right of self-defence. In contrast, they have not re-opened debates about the permissibility of armed reprisals, even where their actions seemed to follow the logic of retaliation.

For present purposes, it narrows down the field of inquiry considerably. If states do not invoke other grounds even though they may better reflect their actual conduct , they do not seem to consider that these other grounds would afford justification. To take but one example, if states resort to what may look like reprisals, but then do all they can to explain their conduct as an act of self-defence, they — quite correctly — do not seem to think that a plausible case for the legality of armed reprisals can be made out.

States do not publicly question the main pillars on which it rests. Discussion still takes place within the parameters of the traditional system; that system has not lost its capacity to channel debates. On the other hand, while the pillars of the system still stand, they may be eroding rather fast. The subsequent sections address three aspects of the traditional regime which have come under particular strain, and in so doing seek to give a balanced account of the present state of the law governing anti-terrorist force.

Much of the discussion so far has centred on the inter-state reading of self-defence. The issue has prompted rather heated exchanges among commentators, especially after the International Court of Justice had seized the opportunity to address the matter. In retrospect, some claims made during these debates appear exaggerated.

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Predictably, this radical re-reading has prompted much discussion, not least by the International Court of Justice. Faced with these new challenges, the International Court of Justice initially seemed willing to defend its traditional approach. It rejected Uganda's reliance on self-defence as a response to armed attacks by a rebel movement operating from within the Democratic Republic of the Congo DRC , since these could not be attributed to the DRC.

Predictably, a number of judges were not convinced by the majority's lack of reasoning in the Israeli Wall opinion and drew attention to the more recent practice. Given the Court's new uncertainty and the amount of new state practice, the better view indeed is that the traditional rules have been modified.

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This in fact seems to have become the prevailing understanding. In this respect, the academic debate, suggesting a clear distinction between state attacks and non-state attacks, may have been based on false premises. As noted above, the Nicaragua case did not rule out that attacks by non-state actors could be promoted to the level of state attacks, if only the state was sufficiently involved in them; as a consequence, it may have been more flexible than defenders of the traditional approach acknowledged.

In between strict adherence to tradition and radical departure, the more convincing way to accommodate the new practice is to opt for an approach which retains the traditional understanding of self-defence as a justification for the use of force between states , but recognizes the existence of special rules on attribution of terrorist activities.

Instead, contemporary practice suggests that a territorial state has to accept anti-terrorist measures of self-defence directed against its territory where it is responsible for complicity in the activities of terrorists based on its territory — either because of its support below the level of direction and control or because it has provided a safe haven for terrorists. Notably, it broadens the forms of support which trigger a territorial state's responsibility, but does not lose sight of its intention.

At the same time, the test seems flexible enough to accommodate issues such as the international condemnation of a state's conduct e. The gradual recognition of this new standard of attribution indeed marks a departure from the restrictive test enunciated in Nicaragua. Curiously, this departure comes at a time when the Nicaragua test has matured into a general residual rule of attribution affirmed in the ILC's work on state responsibility and confirmed in the Court's jurisprudence.

Rules on attribution are not set in stone; Article 51 UNC does not lay down a particular approach. What is more, the more lenient standard of attribution can be said to reflect the growing determination of the international community's fight against terrorism. None of this suggests that the move towards a more lenient rule of attribution is a beneficial development.

However, it is a move which the international community seems willing to accept and which should be seen as a process of reform rather than a revolution. The second element of the traditional understanding — the threshold requirement — has received less attention. By way of example suffice it to mention the responses, by Israel and Turkey, which were prompted by cross-border attacks below the threshold of an armed attack. In this respect, two observations are in order. While state practice suggests a more lenient approach, the distinction as such has been defended rather vigorously.

In fact, the recent jurisprudence of international courts and tribunals if anything affirms it. On closer scrutiny, there may have nevertheless been some development. In reacting to Israel's and Turkey's practice, few states have expressly endorsed this doctrine. By implication, the large number of states accepting Turkey's and Israel's claim to self-defence however seemed to accept it, at least in situations involving constant terrorist attacks which are part of a deliberate policy of violence.

Clearly, the doctrine appeals to those who have long criticized the gap between Articles 2 4 and 51 UNC, implying that states had to accept low-level uses of force. However, recognition of the accumulation doctrine is not the only way to achieve that goal.

Both arguments suggest that while the threshold requirement is maintained as such, it is increasingly being re-interpreted — either by admitting the possibility of accumulation or by recognizing a right of low-level counterforce. Both approaches indicate increased opposition to the narrow construction of self-defence set out in Nicaragua and to the gap resulting from it. On policy grounds, that gap indeed seems difficult to defend, and attempts to close it should be viewed favourably.

In contrast, to re-interpret the threshold requirement in the light of the accumulation doctrine may present the more feasible approach. For that reason, it can only be hoped that the international community will not embrace it and, if anything, accept a more limited right to use low-level counterforce against cross-border violence. The temporal limitation of self-defence has come under pressure from different directions.

That challenge has led to a more flexible handling of the immediacy criterion, but in its radical form seems to have been resisted. Other means are available to a concerned State, including, in particular, recourse to the Security Council. This rejection may however have come at a price. The statements just cited are evidence of a more flexible approach. Admittedly, the matter is far from settled, but when looked at from a distance the price to pay seems small, and a re-adjustment of the rules would not necessarily conflict with the wording of Article 51 UNC. Yet it also, and much more fundamentally, affects the temporal dimension of self-defence.

If attacks can be accumulated, then a response will satisfy the immediacy requirement even if it comes too early or too late to repel the single incident which prompted it. The risks are borne out particularly clearly by Operation Enduring Freedom , an operation initially based on a broad, yet defensible reading of Article 51 UNC, which has turned into a self-perpetuating military campaign serving a range of objectives. It is submitted that that campaign has clearly overstretched the boundaries of even the broadest understanding of self-defence.

Equally worrying is the tendency of the international community to accept claims based on self-defence which in reality do not serve a defensive purpose. The survey of practice suggests that this requirement today is applied very flexibly. States have labelled as self-defence a whole range of measures which did not serve a defensive purpose. Yet one cannot fail to note that in recent years states have invoked self-defence to justify conduct which primarily served non-defensive purposes. Again, it may be too early to tell whether recent practice will modify the existing standards.

The result may be rather paradoxical: The preceding considerations suggest that in many respects the last two decades have transformed the rules governing forcible responses against terrorism. The international community's growing determination to fight terrorism has not left the jus ad bellum unaffected. The extraterritorial use of force remains prima facie illegal, but justification seems much more readily available than 20 years ago.

Insofar as the UN's collective security system is concerned, this has been uncontroversial. It is beyond doubt today that the Security Council can authorize the use of force against terrorists. However, the political limits remain. Even in times of worldwide consensus, individually affected states may prefer to act unilaterally. This has brought about new uncertainty about the scope of exceptions to the ban on force. Whether the new practice is a temporary aberration or ushers in a new era in which the jus ad bellum is applied with greater flexibility may in some respects be too early to tell.

Yet three points can be made: On frequent occasions, during the last two decades, many different states have asserted a right to use force against terrorists, and their conduct has been viewed rather favourably by the international community. While there seems to emerge a new, lower standard of attribution, the new practice can be explained as a reform of the previous, restrictive approach set out in Nicaragua.

By increasingly abandoning these limitations, the international community runs the risk of transforming a temporary defensive right into an open-ended instrument for forcible intervention.

The preceding discussion suggests that the law governing anti-terrorist force is in a process of change. This process may be looked at from different angles. The growing international consensus against terrorism has entailed far-reaching legal consequences. International rules requiring state cooperation or active state conduct against terrorism have multiplied. More important, at least for present purposes, is the militarization of the fight against terrorism. International law now accepts that the fight against terror may require the use of extraterritorial force — certainly within the multilateral context, but possibly also outside it.

As regards the jus ad bellum, developments during the last two decades indicate that the law is capable of adaptation. The growing consensus against terrorism has put pressure on the traditionally restrictive regime. This pressure has affected the interpretation of exceptions to the ban on force.

These are increasingly construed broadly, so as to take account of the denunciation of terror. The broad construction can be easily accommodated within the United Nations system of collective security. With respect to unilateral force, it requires a far more difficult adjustment of the traditional rules, and is proving much more controversial. Yet the process of adjustment seems well under way. The point can by illustrated by reference to a statement made some 25 years ago, in Security Council debates on one of the more high-profile instances of anti-terrorist force.

Tunisia, then, actually provided a base for murderous activity against another State and, in fact, the nationals of many States who are the objects and victims of this terrorist organization. Twenty-five years ago that statement was roundly rejected, partly because Security Council members evaluated the facts differently, but partly because they did not accept Israel's legal argument.

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As a consequence, 14 members of the Security Council agreed to condemn Israel's conduct in the strongest terms, with only the United States abstaining. Much depends of course on the facts and the credibility of a state's claim. Yet the underlying legal claim argument — that states aiding and abetting terrorists abuse their sovereignty and must accept some form of counter-action — has become a standard formula of modern debates and would probably meet with approval of some and tacit agreement of many states.

The consequences, and implications, of the new, flexible approach are readily apparent. By recognizing a broad construction of the exception, the international community, in a specific field of international relations, increasingly seems to free states from constraints imposed by the ban on force.

This new flexibility of course comes at a price: Yet the preceding discussion also suggests that during the last two decades the international community has been prepared to take that risk.

Readjustments of the jus ad bellum are not deduced from some legal principle, but borne out by the actual practice of states, which at least during the last two decades has recognized the right of states to use anti-terrorist force if this served to avert threats and no other means seemed available. If the jus ad bellum has evolved during the last 20 years, then it is likely to evolve further over time. If it is accepted that some aspects of the rules on anti-terrorist force are in a process of readjustment, then they may even require some further development, either confirming recent trends or reversing them.

So how might the law develop? However, three scenarios can be envisaged. The first scenario is that of a de-militarization of the fight against terrorism and of a return to the criminal law strategy. This would presuppose further progress in the move towards a criminalization of terrorism and the establishment of a much more effective system of international cooperation. If existing treaties are to serve as a model, the future multilateral regime is likely to include enhanced duties to criminalize and prosecute terrorist activities, arrangements for cooperation in criminal matters, as well as in the fight against financiers of terrorism; in addition, one might hope that it also includes safeguards protecting individual rights of terror suspects.

Just as it has done with respect to other international tribunals, the Security Council would be well-placed to assume the role of an enforcement agent, e. In fact, the no doubt reformed Security Council of might even call upon a standing anti-terrorist force to arrest terror suspects and hand them over to the ICC's terrorism chamber. While the latter development may require some imagination, the criminal law scenario could build on the groundwork laid in existing anti-terrorism conventions and on precedents of previous Security Council action.

The broad construction of self-defence emerging during the s and s might in retrospect then appear as no more than a temporary aberration. The second scenario is less optimistic, but may be more likely. It is based on the assumption that the trend towards unilateral anti-terrorist force consolidates. If states continue to exercise anti-terrorist force, how would this consolidated body of practice affect the state of the law? On one level the answer is clear: It is submitted that the Charter does not preclude the recognition of a right to use self-defence against states harbouring terrorists, if that is required to avert an imminent armed attack.

In fact, the Charter may even tolerate the trend towards retaliatory defence, even though one might hope that states abusing the self-defence concept for non-defensive purpose would be more open about their real intentions. In short, if the international community agrees on the broader reading of Article 51 UNC emerging during the last two decades, then that re-interpretation will become accepted over time. Commentators writing in might in retrospect point to the s and s as the crucial period in which the broader reading had gained ground.

If this is to happen and one may dread the thought , then the commentator writing in might describe the fight against terror as a catalyst of indeed revolutionary change.

Terrorists want to destroy our cities. We can’t let them

Finally, there may be a third scenario transcending the dichotomy between criminal and military anti-terrorism strategies. A commentator writing in might be able to report on the emergence of a regime of international enforcement jurisdiction over terrorists. That regime may be based on international conventions or Security Council authorisations, or both. It would allow states to use force extraterritorially as a designated measure of law enforcement. It may have drawn inspiration from long-established rules governing enforcement measures against pirates on the high seas, or controversial attempts to re-write the principles governing the interdiction of ships, but would need to move beyond these so as to allow for enforcement on foreign soil.

Presumably, the right of states to enforce anti-terrorist rules would be subject to rather strict conditions: The new regime of extraterritorial enforcement jurisdiction over terrorists would be based on the conviction that the fight against terrorism requires a military component, but it would channel military measures into a regime of enforcement jurisdiction established in the interest of the international community.

As such, it would recognize that forcible measures against terrorists in recent years have typically been based on the logic of enforcement, not defence. Unlike other possible scenarios, a regime of extraterritorial jurisdiction would address terrorists directly just as Article of the Law of the Sea Convention LOSC addresses pirate ships directly rather than indirectly applying the inter-state rules on force to them. Evidently, the prospects for such an enforcement regime are rather slim. It presupposes a willingness of states to accept a far-reaching exception to present-day rules governing enforcement jurisdiction.

Still, the possibility should not be completely ruled out. Recent Security Council resolutions have revived and broadened the long-dormant rules governing enforcement jurisdiction over pirates, so as to permit enforcement measures within sovereign spaces of another state. It is entirely possible that these developments should signal a broader approach to enforcement jurisdiction generally which, by , could be applied to terrorists as well.

The different options are not mutually exclusive. Twenty years from now, the fight against terror may still be fought, as today, with criminal and military means, possibly complemented by an internationalized enforcement regime of limited application e.

Fighting terrorism

If there is one lesson to draw from developments during the last two decades, then it is that no scenario can be excluded. Who, in the s, would have expected the international community to move towards an unconditional condemnation of terrorist activities? Who, in , would have expected the Security Council to adopt a comprehensive, non-military, anti-terrorism programme through a series of resolutions?

If the international community is capable of maintaining a strong stance against terrorism, then there is no reason to expect that the jus ad bellum should be immune from further change. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account. Close mobile search navigation Article navigation. Abstract Whether states can use force against terrorists based in another country is much discussed. Joyner, International Law for the 21 st Century , at And, of course, the invasion of Iraq in was led by Bush the Second and Dick Cheney, politicians with deep ties to the petroleum industry.

Though the United States lost that war, you might say the US oil companies won it. After years of sanctions, Iraq oil was up for grabs, and they grabbed, and profited and still profit. I remember participating in a blockade at the Chevron refinery in Richmond, California, early in the war, when Iraqi crude was coming to its processing unit. Sometimes the two are hard to separate. In , Nigerian activist Ken Saro-Wiwa was hanged by the military of that country, who were defending the oil industry , notably Royal Dutch Shell.

Oil refining is a nasty business, another kind of war, one that has poisoned the people of Richmond, the people around the mega-refinery complexes that get called Cancer Alley on the US Gulf coast and those in many other places where refineries are located.

Use of Force against Terrorists | European Journal of International Law | Oxford Academic

Recognizing that should give more impetus to the climate change conference and the climate change movement. Whether the attackers in Paris had the climate conference in their sights is not clear, but the conference participants and the activists outside should have the oil wars in their own. Because someday we must be able to look back on this era as one of inhuman corporate powers and destructive pursuit and use of fossil energy. Able to look back because we have moved on. Extraction is also a filthy process.

Then comes transport, complete with oil spills on land, in rivers and at sea as the stuff gets transported in trucks, trains, pipelines and tankers. This is followed by health problems from both the accidentally spilled crude, the byproducts such as refinery emissions and the end-use emissions from automobiles and power plants.

Environmental devastation is a standard part of fossil fuel extraction, from the coal country of Appalachia to the oil-ravaged Niger delta of Nigeria. You could call it a war against nature. And the chaos of climate change will create resource wars, mass refugee populations, famine, increased disasters from firestorms to heatwaves to floods to desertification.

The incidents drew more attention to the fact that the civil war in Syria is in part a climate change-driven war. Several years of extreme drought, as we all now know, drove farmers off their land. And Isis derives a great deal of revenue from fossil fuel. Imagine a world in which the gigantic oil companies withered in size or altogether ceased to exist.

Right now two-thirds of US citizens want a binding climate treaty, and the Republicans in Congress are making it clear they want to sabotage any such treaty, ahead of time if possible. Fossil fuel is a major part of how a supposedly representive democracy has ended up with such a deeply unrepresentative government.