The Use of Armed Force Against Terrorism: American Hegemony or Impotence?

Abstract

Let our actions today send this message loud and clear: There are no expendable American targets; there will be no sanctuary for terrorists; we will defend our people, our interests and our values; we will help people of all faiths in all parts of the world who want to live free of fear and violence; we will persist and we will prevail. President William J. Clinton1 Ironically, while the rest of the world is greatly concerned and annoyed about American military hegemony,2 some Americans believe U.S. military force is impotent in its fight against international terrorism.3 It seems as though America's benevolent role as the world's sole superpower should serve as a stabilizing force for international peace and security and a deterrent to terrorists. Instead, its formidable military dominance has antagonized other states and has made America the world's sole super-target of terrorists. In 1997, for example, Americans were the targets of over one-third of all international terrorist attacks.4 The United States defines terrorism as "premeditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents," usually intended to influence an audience, and international terrorism as "terrorism involving citizens or the territory of more than one country. ,5 Defined as such, international terrorism is a criminal act committed by non-state actors-and the appropriate response of a victim state to defend against such terrorism is law enforcement. All non-state actors, however, operate within the sovereign territory of at least one state, and when a territorial state is unwilling or unable to cooperate in the suppression of international terrorism, or when it is covertly supporting international terrorism, then the law enforcement option fails. Furthermore, some states openly engage in, or support acts of violence that fall within the U.S. definition of international terrorism,6 and when a state attacks another state by resorting to or supporting international terrorism, an appropriate response of the victim state may be the use of armed force. Accordingly, international legal authority for a state to respond to acts of international terrorism is actor-dependent. If it is known that a non-state actor has committed an act of terrorism against the United States, then American law enforcement has the right to apprehend and prosecute the terrorist. However, when the location of a terrorist or a terrorist base camp is known and the territorial state refuses to cooperate with American law enforcement, the law enforcement response is completely ineffective in defending Americans and American interests abroad. In contrast, if it is known that a state actor has committed or supported an act of international terrorism, then American national security organizations have the lead in responding to the use of armed force by another state. Depending upon the severity of the terrorist attack and other circumstances, such a response may range from a diplomatic protest to seeking Security Council condemnation to the use of armed force in self-defense. In practice, however, the identity of the actor and a determination of state-sponsorship can be very difficult to establish. This Article briefly outlines the legal regimes which principally govern U.S. responses to international terrorism when it is established that the terrorist is either a non-state or state actor, and it explores international legal authorities' use of armed force against non-state actors when law enforcement options fail to protect Americans and American interests abroad. No state, including the United States, should take a heavy-handed approach toward the use of armed force under any circumstances. All states, however, must be able to exercise their inherent right under international law to defend themselves against all actors-non-state and state alike. Effective deterrence demands that terrorists do not have safe havens and that terrorists must fear that they ultimately will pay a price for their criminal mayhem. …