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TABLE OF CONTENTS INTRODUCTION 1 CHAPTER 1 THE DEVELOPMENT OF THE LAW RELATING TO THE USE OF FORCE IN INTERNATIONAL LAW I. INTRODUCTION 15 II. THE MODERN NATION STATE AND THE ENTRENCHMENT OF FORCE AND TERRORISM 17 III. USE OF MILITARY FORCE AND THE MODERN NATION-STATE 20 Self-Defence 21 Anticipatory Self-Defence 23 The Caroline Incident 24 Reprisals/Retaliation 27 The Inter-Relation of Self-Defence, Reprisal and Retaliation 31 IV. UNSTEADY STEPS TOWARDS LIMITING USE OF MILITARY FORCE 32 The "Philosophy of Terror" and the Precipitation of World War I 35 V. THE ERA OF THE LEAGUE OF NATIONS 37 Restrictions on the Use of Military Force as a State Prerogative 38 Terrorism and the League of Nations 41 VI. FORCE AND THE REGIME OF THE UN CHARTER 44 The UN Charter 47 Article 2(4): The Proscription of Force 47 The Concept of Armed Attack 50 The Use or Threat of Force 52 Article 51: The State's Right to Respond in Self-Defence 53 The Restrictionist Approach 55 The Counter-Restrictionist Approach 57 Anticipatory Self-Defence 56 The UN Charter and Other Forms of Forcible Self-Help 59 The Declaration on Friendly Relations 61 Security Council Practice 62 VI. CONCLUSION 64 CHAPTER 2 COUNTERING TERRORISM: AN EVALUATION OF THE LAW ENFORCEMENT AND CONFLICT MANAGEMENT APPROACHES I. INTRODUCTION 76 II. COUNTER-TERRORISM MANAGEMENT PARADIGMS 78 The Law Enforcement Paradigm 78 The Conflict Management Paradigm 79 III. TERRORISM AND THE UN: AN AMBIVALENT RELATIONSHIP 82 IV. ANATOMY OF TERRORISM 86 Defining Terrorism 86 Defining State-Sponsored Terrorism 90 V. THE LAW ENFOCRCEMENT PARADIGM: TERRORISM AS A CRIME 92 The Extradite or Prosecute Mechanism 94 Bases of Extra-Territorial Criminal Jurisdiction 96 The Protective Principle 97 The Passive Personality Principle 98 The Universality Principle 99 VI. THE USE OF NON-LETHAL MILITARY FORCE: APPREHENSION OF TERRORISTS IN INTERNATIONAL SPACE 101 VII. THE CONFLICT MANAGEMENT PARADIGM: TERRORISTS AS WARRIORS 102 Terrorists: Combatants or Non Combatants 104 The Terrorist in Action: Hero or Villain 104 Slippery Ground: The Terrorist in the Law of Armed Conflict Framework 106 Limited Lethal Military Force: Assassinations or "Surgical Strikes" 109 Large Scale Military Force: Terrorism as an Act of War 112 State-Responsibility 113 Anticipatory Self Defence/Pre-Emptive Strike 115 VIII. CONCLUSION 117 CHAPTER 3 THE COLD WAR ERA: TERRORIST ACTION AND REACTION I. INTRODUCTION 127 II. USE OF MILITARY TO COUNTER TERRORISM: PUTTING LIFE INTO THE SCARECROW 129 New Frontiers on the Use of Force: The Reagan and Shultz Doctrines 131 III. A LEGAL QUAGMIRE: USE OF FORCE AS A COUNTER-TERRORISM MEASURE 138 Self-Defence 139 Anticipatory Self-Defence 142 Reprisal 144 Summing-Up 145 IV. USE OF NON-LETHAL MILITARY FORCE: THE "JAMES BOND" DIMENSION 147 "Operation Goldenrod" 147 The Achille Lauro Incident 148 The "Wings of Law": Israel 150 A Unique Solution, Uncertain Legal Ground 151 Self-Defence as a Justification 151 State Responsibility as a Justification 152 The Ker-Frisbie Doctrine 153 Summing Up 155 V. CONCLUSION 156 CHAPTER 4 JUMPING THE GUN-AN OLD PROBLEM AS A SOLUTION FOR NEW THREATS? AFGHANISTAN, IRAQ AND BEYOND I. INTRODUCTION 164 II. PROACTIVE COUNTER-TERRORISM POLICY 167 III. SEPTEMBER 11, 2001: CROSSING THE RUBICON 171 The "Bush Doctrine" 173 IV. ANCHORING THE ATTACKS ON AFGHANISTAN AND IRAQ 179 Afghanistan 179 Iraq 184 V. MURKY LEGAL WATERS: THE USE OF FORCE AS A COUNTER-TERRORISM MEASURE IN LIGHT OF THE UN CHARTER 187 Anticipatory Self-Defence 189 Customary International law: Alive or Dead? 189 Weapons of Mass Destruction: A New Calculus 193 Prickly Legal Matters: Gauging the Benchmarks 196 A. Unilateral Threat Assessment 198 B. Proportionality 200 C. Armed Attack Nexus 200 Reprisals 202 VI. CONCLUSION 204 CHAPTER 5 STRIKING THE ENEMY'S LAIR: THE WAR ON TERROR AND STATE-SPONSORED TERRORISM I. INTRODUCTION 220 II. STATE RESPONSIBILITY 223 Physical Control 224 Extra-Territorial Responsibility 225 Guilt by Association: Attribution of Actions 228 III. USE OF FORCE AND STATE-SPONSORED TERRORISM 235 Military Force in the Context of Self-Defence 239 Self-defence in the Context of State-Sponsored Terrorism 242 Resort to Retaliatory Strikes 245 Expanding the Definition of Armed Attack 246 A Silent Revolution: Armed Attacks and Non-Statal Entities 250 IV. CONCLUSION 254 CHAPTER 6 THE WAR ON TERROR: RATTLING INTERNATIONAL LAW WITH RAW POWER? I. INTRODUCTION 265 II. A STEP BACK IN TIME 267 III. CHANGING GEAR WITHOUT ENGAGING INTERNATIONAL LAW 271 IV. MARGINALISING THE UN AND INTERNATIONAL LAW? 273 V. THE FUTURE 277 VI. CONCLUSION 281 BIBLIOGRAPHY 287 Index
Library of Congress Subject Headings for this publication:
War (International law).
War on Terrorism, 2001- -- Law and legislation -- United States.
Terrorism -- Prevention -- International cooperation.