Some international law issues arising from the events of 9/11

by Elias Davidsson

9 April 2006

The events of 9/11 are of crucial importance with regard to the current development of international law for various reasons:

(a)  Questions arise about how states designate events such as 9/11. Are such events an "armed attack", domestic mass murder, crimes against humanity?  Each designation  leads to different responses. The US government choose to designate the events as an "armed attack" in order to justify the bombing and invasion of Afghanistan and avoid a criminal investigation.  Are states free to designate acts such as the murder of 3000 people as they wish?     

(b)  How can a legal observer assess whether the designation of 9/11 as an "armed attack" was justified?  What mechanism exists to challenge such determination? Was the response to this alleged "armed attack" commensurate with customary international law and the obligations under the UN Charter?  Are states under the obligation, under international law, to prove that an "armed attack" from another state occurred before invoking self-defense? What are the minimal standards of evidence?  Is secret evidence that an attack emanated from another state, sufficient to invoke self-defense?

(c)  Did the Security Council act in good faith, when it decided 24 hours after the events that the events of 9/11 were an act of "international terrorism"  when at that time the Council did not and could not know who were the perpetrators of this mass murder? [In fact the Security Council was never presented with any such evidence]. Are there any principles in international law which could be invoked to deal with a situation in which the Security Council makes legal determinations on contrived, secret, fabricated or non-existent evidence?  What are the legal consequences of a determination by the Security Council made in bad faith, or as part of a conspiracy of its members?  Can international law, as a set of norms, be used to assess whether the Security Council acts in good faith and on the base of true facts? Are States legally required to presume the good faith of the Security Council?

(d)  Does the duty to protect the right to life under the ICCPR, which the US has ratified,  extend to the obligation of the contracting parties to "adequately investigate" the arbitrary deprivation of life within their own jurisdictions?  If so, what is the exact content and scope of such an obligation? Did regional human rights courts identify and define an obligation to investigate the violation of the right to life?

(e) Does the Security Council possess the right, under the UN Charter, to enforce the investigation and prosecution of crimes against humanity?  What measures can the United Nations take, in he view of the failure by the US to adequately investigate the events of 9/11?

(f)  Does the designation "international terrorism" for particlar acts bring the impugned acts under the realm of international criminal law? If so, are there any appropriate rules of international criminal law applicable to "international terrorism"? If not, what is the appropriate legal regime to deal with such acts?  Is "international terrorism" a criminal offense that should be dealt according to the norms of criminal law?  Is there any base in customary international law that would support the establishment of a sui generis legal regime for "international terrorism"?