The Similarities, Differences and Connections between State and Non-State Terrorism - Term Paper Example

What are the similarities, differences and connections between and Non terrorism? Introduction The focus of this paper is to critically evaluate the complex relationship between state terrorism and non-state sector terrorism with a consideration of the similarities, difference and connections between the two. It is submitted at the outset that the inherent difficulty in distinguishing between both forms of terrorism is the ambiguity concerning the definition of “terrorism” at an international law level. This is particularly evident with regard to the legal parameters of state sponsored terrorism, which lacks any international consensus regarding enforceability (Becker, 2006). Previous United Nations General Secretary Kofi Annan asserted that “it is time to set aside the debates on so-called “state terrorism”. The use of force is already thoroughly regulated under international law” (In: Lind, 2005). Moreover, it was asserted that “regardless of the differences between governments on the question of definition of terrorism, what is clear and what we can all agree on is any deliberate attack on innocent civilians, regardless of one’s cause, is unacceptable and it fits into the definition of terrorism” (In: Lind, 2005). However, the intrinsic flaw of this argument is the uncertain boundaries of the right to use force in international law, which is further compounded by the jurisdictional legitimacy of military acts against non-state sectors in other territories (Goldsmith & Posner, 2005). As such, it is evident from the outset that the failure to define terrorism clearly as an international crime lends itself to the obfuscation of a meaningful distinction between state terrorism and non-state terrorism within the international legal framework. Therefore in evaluating the relationship between state terrorism and non-state terrorism, I shall firstly consider the concept of state terrorism, the problems of defining terrorism as an international crime and the actions of and against non-state sectors. Concept of State Terrorism & Relationship with Non-State Terrorism It is submitted at the outset that an overriding problem is the ambiguity as to whether “terrorism” is an international crime for the purposes of enforceability under customary international law and treaty provisions to fall within the jurisdiction of the International Criminal Court (ICC) (Banchik, 2003). Moreover, with regard to the concept of “state terrorism”, the term “terrorism” has no agreed definition and state terror is often applied to cover the conduct of official government groups (Poland, 1995). However, whilst these are official groups, the complex governmental and political infrastructures of states such as Sudan and Ethiopia for example, clearly mask the subliminal controlling influence of groups involved in terrorist activities, which also fall within the concept of state sponsored terrorism (Jalata, 2005). Indeed, Jalata points to the fact that both Sudan and Ethiopia utilise “state terrorism as political tools for creating and maintaining the confluence of identity, religion, and political power” along with Jalata’s assertion of “undergovernmental” forces within these states which has facilitated “ethnonational cleansing, which has been disguised rhetorically as a move towards national self-determination and democracy” (Jalata, 2005). Indeed, with regard to Sudan, the UN Security Council views the totalitarian regime as supporting non-state sectors such as Janjaweed’s policy of ethnic cleansing of the indigenous population of Darfur (Jalata, 2005). This further highlight the close correlation between state and non-state terrorism as the state acquiescence of non-state terrorist activities clearly points towards state sponsored terrorism de facto. As such, the central differentiating factor between state sponsored terrorism and non-state terrorism appears to be the state sanction of the terrorist activity, whether by official means or by stealth (Primoratz, 2004). Furthermore, the term is often utilised to describe conduct of various governments in directly organising violent acts in other states, which often creates problem with international law with regard to the legitimate use of force (Ackerman, 2003). To this end, state sponsored terrorism can often be cloaked within the veil of legitimacy, which lends itself to Primoratz’s assertion that state terrorism is morally worse than non-state terrorism as “state terrorism is bound to be compounded by secrecy, deception and hypocrisy”(2004) and as these states are prima facie subject to international law treaties and conventions, these effectively enable such states to legitimately be “in breach of its own international commitments” clearly creating a paradox within the international legal order (Primoratz, 2004). Primoratz’s arguments regarding state terrorism achieves further gravitas on grounds that the legitimate boundaries concerning the use of force have always been a controversial focus of international law. Post-holocaust, the international community gravitated towards a human rights culture with the emphasis on outlawing scope for genocide, torture and human rights abuses. The preamble of the United Nations Charter (the Charter) highlighted the purpose of the UN as “saving succeeding generations from the scourge of war” and to ensure that member states “settle their international disputes by peaceful means” (UN Charter Preamble, Article 2(3) 1945). Prior to 1945 there was no unified international prohibition on unilateral resort to force and the UN Charter sought to radicalise international politics through a general prohibition on the use of unilateral force by member states. The prohibition was officially enshrined in Article 2(4) of the Charter, which provides that: “All member states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”(UN Charter Article 2(4) 1945). Despite the purported ban on unilateral use of force, the parameters of Article 2(4)’s applicability have remained uncertain, with some questioning its practical efficacy as a protective measure against unilateral use of force (Dixon 2004). This is further highlighted by Reisman’s view that “Article 2(4) was never an independent ethical imperative of pacifism” (Reisman 1984). Indeed the wording of Article 2(4) would appear to underline this as the prohibition appears to be subject to the caveat that the unilateral force must not be “inconsistent with the Purposes of the United Nations” (UN Charter Article 2(4) 1945). This ambiguity is compounded by failure to clarify what is a legitimate purpose of the United Nations, coupled with the right of member states to self defence under Article 51 (UN Charter, Article 51 1945). As such, this clearly lends itself to abuse within the state sponsored terrorism paradigm (Becker, 2006). Moreover, the aftermath of September 11 has been utilised as a basis for reshaping the dimensions to the “legitimate” use of force under international law, with the legal definitions of self defence being extended de facto to cover pre-emptive terrorist strikes (Dixon and McCorquodale, 2003). The most significant issues are the undermining of the legal validity of the right to self-defence under international law, which has been brought to the fore by military actions across borders against non-state sectors hiding out in foreign territories, such as the US military strikes against Al Qaeda in Pakistan. This clearly changes the legal dynamic, whereby the target state is active against hiding such non-state sectors, which appears to enter the territory of state sponsored terrorism. Furthermore, this uneasy tension between justified actions against non-state sectors highlights the inherent jurisdictional problems created by global terrorism in international law. This further creates a legal conundrum in international law, underlining the difficulty in demarcation of the boundaries between state sponsored terrorism and non-state terrorism. Moreover, international law fails to adequately address the relationship between and the distinction between state and non-state acts (Becker, 2006). For example, Poland argues that state sponsored terrorism is often a form of low intensity undeclared warfare among sovereign states (Poland, 1995). This is evidenced by the action of the United States during Reagan’s presidency denounced Libyan regime and more recently Israel’s attack and invasion of Gaza on grounds that Gaza is a non-state terrorist group (Becker, 2006). Becker further highlights Israel’s official perception of Hezbollah as a non-state terrorist party, whereas legally it is a Parliamentary political party (Becker, 2006). As such, Israel argues that its attack on Gaza is justified, whereas Hamas’ government as a democratically elected party undermines the legal veracity of Israel’s argument from an international law perspective. As such, this leads to a difficult line between what could be perceived as Israel’s state sponsored terrorism on the one hand or alternatively, the legitimate military conflict against a non-state sector in international law on the other, which is further compounded by the lack of definition for terrorism. This further emphasises the similarities between both state terrorism and non-state terrorism, which has continued to provide a stumbling block in reaching a consensus on a formal distinctive definition of both forms. Indeed, from an academic perspective the underlying connection in both is the word “terrorism” which is an attempt to change, through violence and intimidation, the practices and policies of people and governments (Poland, 1995) along with the common link of both forms of terrorism involving organised acts of violence designed to intimidate opponents (Duffy, 2005). Becker further argues that the “agency paradigm” argument underlying the link between state sponsored terrorism and non-state terrorism whilst justifiable theoretically; in practice lends itself amenable to questionable justifications of force under the cloak of international treaty provisions (Becker, 2006). The Definition of Terrorism as an International Crime As stated above, an overriding problem is the ambiguity as to whether “terrorism” is an international crime for the purposes of enforceability under customary international law and treaty provisions to fall within the jurisdiction of the International Criminal Court (ICC) (Banchik, 2003). This is further evidenced by the fact that terrorist activities often involve direct attacks on the civil population. As such, it is clearly stretching the obvious purpose of the UN treaty provisions and the Rome Statute, which expressly covers genocide. Moreover, the sporadic nature of such attacks clearly renders it difficult to have a sufficient number of acts committed against any one group for such acts to be classified as “genocide” within the Rome Statute definition (Wright, 1999). Under international law, the “war crimes” definition covers a wide range of acts; however there must be armed conflict of an international character (ICC Statute), which underlines the jurisdictional problems of bringing terrorist activities to account at the ICC. This is further compounded by the fact that the UN treaty provisions do not cover non-state sectors, which highlights the potential for legal abuses under the UN Charter Article 51 right to self defence, which will be discussed further below (Drumble, 2002). Additionally, Article 5 of the ICC statute expressly states that a “war crime” includes “intentionally directing attacks against the civilian population/individual civilians/civilian objects/personnel installations etc involved in humanitarian assistance” (ICC Statute, Article 5). This clearly does not cover terrorist acts, however if we look beyond the ICC Statute to Article 51 of the Geneva Convention, this expressly provides that “the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To given effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.” Paragraph 2 of Article 51 stipulates that “civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”. Article 51 was referred to n the case of Prosecutor v Galic (Case no. IT-98-29-T) (December 5, 2003) where General Galic was convicted of Violations of the Laws and Customs of War (acts of violence, which are primarily intended to spread terror under Article 51 of the Geneva Convention) for his campaign of terror no the civilian population in Sarajevo. However, whilst this is undoubtedly a prime example of state terrorism per se constituting an international crime amenable to the jurisdiction of the ICC, it fails to address the proliferation of terrorism by non-state sectors, the status of which remains ambiguous as an “international crime” (Duffy, 2005). This further highlights that a central differentiating factor between state terrorism and non-state terrorism is that whilst state terrorism theoretically remains amenable to international legal accountability, non-state terrorism remains a legal minefield as regards jurisdiction. The problem is further compounded by the fact in international law, there appears to be universal jurisdiction (Duffy, 2005). Moreover, crimes within the jurisdiction of the International Criminal Court and can be investigated and prosecuted by that Court where a state fails to adhere to its duties (Banchik, 2003). However, this fails to account for terrorism, which arguably falls outside the strict definitions of “international crime” and thereby outside the jurisdiction of the ICC. The crimes addressed by international terrorism provisions as currently drafted address war crimes and genocide and do not cover the proliferation of global terrorism phenomenon (Grasser, 2002). As such the issue as to whether terrorism should be an offence under criminal law as a discrete crime was rejected as being within the definition of the ICC and was part of the negotiations leading up to the Rome Statute and therefore Kriangsak Kittichaisaree in notes that “in re list and others, the US military tribunal at Nuremberg defined “an international crime” as follows: “An international crime is such act universally recognised as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances” (Kittichaisaree ,2001). Accordingly, from an international criminal law perspective, an act of terror would have to be universally recognised as criminal and be a crime of international concern in order to be covered by the jurisdiction of the ICC (Kittichaisaree, 2001). However, the inter-relationship of these factors is very complex and remains unclear, thereby lending itself to abuses by states against non-state sectors (Wright, 1999). The current legal uncertainty further blurs the distinction between state sponsored terrorism and non-state terrorist groups. Moreover, it has been argued that the Rome Statute does not itself create international crimes per se and rather, sets out the elements of a crime and articulates the constituent elements of the crime as those whose existence is already recognised in customary international law (Shaw, 2004). On this basis, the Rome statute is an agreement between states about the mechanisms for exercising and enforcing “universal jurisdiction” in relation to those crimes and therefore acts independently of the statute (Shaw, 2004). To this end, this would highlight the fact that if non-state terrorist activities are outside the definition of an “international crime” there is no meaningful jurisdiction to bring such acts to account in international law. To circumvent this problem, rather than attempt to work towards a unified approach to the definition of terrorism as a discrete crime in international law, the international community has instead implemented a number of ad hoc measures as a knee jerk reaction to specific manifestations of terrorism in various treaties (Duffy, 2005). A prime example is the International Convention for the Suppression of Terrorist Bombing adopted by the United Nations on 15 December 2007. This convention requires states to criminalize acts covered and make them “punishable by appropriate penalties which take into account the nature of the offences”. With regard to jurisdiction the Convention provides that “This Convention shall not apply where the offence is committed within a single state, the alleged offender is a national of that State and is present in the territory of that State and no other State has a basis under this Convention to exercise primary jurisdiction over that offence”. If we consider this Convention in conjunction with the effect of various General Assembly Resolutions and Security Council Resolutions, there appears to be an underlying consensus that terrorism is criminal under international law and not always limited to the exclusive jurisdiction of the state. However, there still remains ambiguity as to the extent of the jurisdiction under international law, which is further compounded by the lack of a cohesive agreement regarding what “terrorism” is for the purpose of international criminal law (Harris, 2004). Cassesse argues that combination of the conventions plus resolutions means that international terrorism is a discrete international crime by virtue of customary law (Cassesse, 2005). Cassesse goes as far as arguing that there is a general agreement regarding terrorism, which is comprised of three elements: “the acts must constitute a criminal offence under most national systems (for example assault, murder, kidnapping….”; they must be aimed at spreading terror….by means of violent action or threat thereof direct against a State, the public, or particular groups of persons, (iii) they must be politically, religiously, or otherwise ideologically motivated (Cassesse, 2005). Cassesse further asserts that terrorist acts amount to international crimes, when they are not limited in their effects to one state solely and transcend national boundaries and they are carried out with the support or toleration or acquiescence of the state where the terrorist organisation is located or of a foreign state (Cassesse, 2005). On this rationale, it is the concept of state acquiescence which renders the terrorist activity to the status of an international crime amenable to the jurisdiction of the ICC. Use of the Right to Self-Defence and Tension with Boundaries of State Sponsored Terrorism It is submitted that Cassesse’s interpretation would further render non-state terrorism outside the jurisdiction of the ICC and such a notion can clearly be exploited by the UN Charter Article 51 right to self defence for justification of unilateral force against non-state sectors on grounds of Cassesse’s argument that “at this stage terrorism stops being a criminal activity against which states can fight be bilateral or multilateral co-operation to become a phenomenon for concern of the whole international community and a threat to peace” (Cassesse, 2005). This is further evidenced by Article 51 of the Charter which provides that “nothing in the present Charter shall impair the inherent right of individuals or collective self-defence if an armed attack occurs against a Member State of United Nations, until the Security Council has taken measures necessary to maintain international peace and security” (UN Charter, Article 51). This leaves the Charter principles open to abuse, with potential for perpetrators to justify extreme uses of force as self-defence (Harris 2004). Indeed, this problem is further highlighted by the recent Gaza conflict as discussed above. The actions of Israel have been cloaked within the right to self-defence as justified under international law, which suggests that as far as the international legal system is concerned, state sponsored terrorism is in fact acquiescence in or funding of non-state terrorist activities, which further widens the state use of force within the international legal order (Evans, 2003). This is also became apparent in 1994, when the UN General Assembly requested ICJ opinion on the question of whether “the threat or use of nuclear weapons in any circumstances are permitted under international law”(Quoted in Dixon and McCorquodale 2003, p534). Although the ICJ commented that the use of weapons contrary to the rules of Article 2(4) against unilateral force (which in itself suggests that it is not an absolute ban) and customary law are illegal, the ICJ failed to comment on the use of nuclear weapons in a pre-emptive attack, again obfuscating the fundamental issue as to what constitutes legal use of force particularly in the use of self-defence, which further compounds the issue of justified legal action against terrorists under international criminal law (Duffy, 2005). The initial problem with Article 2(4) as an absolute preventative measure against unilateral force is the inherent uncertainty in its wording. The reference to “purpose of the United Nations” clearly grants an element of discretion to member states to interpret and justify their actions as being in accordance with the purpose of the United Nations. Not only does this suggest that the ban is not outright, it also creates potential for abuse in the absence of clear guidelines as to what constitutes legitimate use of force (Steiner H & Alston P 2000). It is arguable that the crime of aggression strengthens the argument for Article 2(4) as an outright ban on unilateral force however the lack of definition as to what constitutes an act of aggression, coupled with Security Council (SC) restrictions on ICC jurisdiction question its practical benefit as a curb on unilateral force (Ferencz 1999). In general terms the crime of aggression is the attribution of criminal responsibility to an individual for an act of aggression, which is committed by a state (United Nations General Assembly Resolution 3314, 1974). In order to properly define the crime of aggression, it is essential to define the act of aggression, which is one of the elements of this crime. However, states systematically avoided adopting a binding definition of the act since the creation of the United Nations (“UN”). The problem is compounded by the blur between state responsibility and individual responsibility and what constitutes an individual for the purpose of state responsibility. As aggression deals with crimes by states and not individuals, it has been argued that as such, and without appropriate reference to the act of the individual it is not much use (Both, 2008). This in turn has been utilised to exploit the right to self defence as embodied in Article 51 of the UN Charter, which lends itself to support Becker’s argument of the need to re-evaluate the rules regarding state sponsored terrorism (Becker, 2006). Furthermore, The UN charter grants discretion to the SC (under Article 39 of the Charter) to determine the existence of an act of aggression and shall make recommendations or decide what measures shall be taken to maintain or restore international peace and security, however it still does not define ‘act of aggression”. Moreover, Nuremberg also asserted that liability for aggression could only be established if the accused party were leaders or accomplices who had personal knowledge that aggression was contemplated and had helped to plan or wage the crime of aggressive war (Charter of the International Military Tribunal, 8 August 1945). The weakness of the leadership principle lies in the practical limitations of member states bringing national leaders to account for aggressive conduct. Aside from the implications this has for democracy, it also highlights the conflict between international law and domestic law, which facilitates potential abuse of the right to self defence in international law particularly against non-state sectors. This is highlighted by the House of Lords decision in R v Jones (UKHL 16, 2006), the House of Lords rejected an appeal of peace protesters who claimed that the Iraq war was an illegal crime of aggression under international law. Lord Bingham asserted that “I am of the clear opinion that the crime of aggression is not a crime in the domestic law of England and Wales”. Lord Bingham further added that it was not “for the judges to decided what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties” (per Lord Bingham). If we consider this reasoning by analogy to the right to self defence, it appears to give States carte blanche to use unilateral force against non-state sectors without legal recrimination, which is further compounded by the apparent limitation of application of Article 2(4), which further suggests the need to rethink the existing presumptions regarding the definition of state sponsored terrorism (Primoratz, 2004). This in turn would seem to emphasise Reisman’s view that the Article is not absolute just in theory but also in practice. Enforcement of Article 2(4) and other Charter provisions are wholly dependant on member state co-operation and the decision raises wider issues of conflict between international and domestic law. Furthermore, there has never been a consistent opinion juris amongst UN member states on the extent of Article 2(4) and despite the apparent acceptance of this prohibition, post-war conflicts clearly question the weight attached to Article 2(4) by governments particularly when relying on Article 51 (Shaw 2003). Authorisation for force is achieved through SC sanction. The SC has power to “determine the existence of any threat to the peace, breach of peace, or act of aggression” (UN Charter, Article 39) and measures that may require the use of force, if the circumstances are grave (UN Charter, Article 42) . However, the provision for Security Council sanction is not without problems. Firstly, there does not appear to be any distinct guidance on what is legitimate and herein lies the problem. It is perhaps impossible to legislate for what will constitute legitimate and proportionate force in any particular situation. Hence justification for the proposition that Article 2(4) is not and was never intended to be an outright prohibition on use of force. Further, the modus operandi of the SC is complex and many argue that internal complexities of the member states especially those with power at the SC can influence SC decisions according to their political motivations (Both 2003). It is also important to note that states that are not UN members do not have to report to the SC and therefore principles of international customary law will be applicable in this situation, further compounding the uncertainty as to what constitutes legitimate force (Dixon and McCorquodale 2003). This is further evidenced by Article 51 of the Charter which provides that “nothing in the present Charter shall impair the inherent right of individuals or collective self-defence if an armed attack occurs against a Member State of United Nations, until the Security Council has taken measures necessary to maintain international peace and security” (UN Charter, Article 51). Cassese’s literal approach of Article 51 infers that the absence of the term “force” supports the argument that the Article 2(4) ban is outright as the self-defence provision only enables defence measures to be taken in the event of an armed attack. Cassese argues that in the absence of an armed attack, force is prohibited (Cassese 2005). However, Dixon and McCorquodale (2003) argue that some principles of customary law are still applicable notwithstanding the implementation of the Charter and that the scope to use force as self defence is wider than the Article 51 definition. Conversely, others argue that the Charter was intended to herald a “new beginning” (Dixon and McCorquodale 2003, p.520) and therefore customary rules did not go further than the scope for self defence under Article 51. These differing views highlight the conflict between the Charter and customary law and it is vital that policy and government consistency is maintained in the application of international principles. The Caroline case (29 Brit & For St Papers, 1837) established the principles in relation to when force could be justified on grounds of self defence, introducing the two-stage test of necessity and proportionality. A distinction was made between the use of force as a means of self-defence from those that constituted reprisal actions. These general principles are reflected in the “inherent” right to self-defence as enshrined in Article 51. The landmark ICJ decision in Nicaragua v USA (ICJ Rep 1986 14), asserted that “the charter testifies to the existence of the right to collective self-defence in customary international law…,” (paragraph 104-105) and that there was no requirement for the States to be directly affected to participate in collective self-defence. The case also determined that self defence acts had to be discontinued as soon as the SC stepped in with measures to restore the security and in the event where the act of self defence filled its purpose (Cassese 1999). In both cases, the target states were supporting irregulars hiding within their borders and as such, the attacking states created an artificial relationship of agency between the target state and irregulars to claim the right to use force. This further supports Becker’s argument of the inherent flaw in the agency paradigm in distinguishing between state terrorism and non-state terrorism (Becker, 2006). The rationale of the ICJ appeared to indicate that the harbouring non-state sectors did not constitute justification to rely on the right to self-defence unless it could be determined that it amounted to approval of terrorist attacks (Cassesse, 2000). The only exception is where the state has effectively become lawless and has failed to remove the terrorism from its territory, which has been manipulated by the US in justifying its attacks in Afghanistan and Iraq. However, the case did not explore the degree of force required to classify an “armed attack”. Leading academic MacClean (1997, p.296) has suggested that perhaps this case should be distinguished on its facts, which in itself highlights the unrealistic task of creating legal boundaries for the use of force in international conflict. Furthermore, if we follow the approach that the Charter has superseded customary law, then we are left in a position where the Charter does not define “armed attack” or circumstances where self-defence is justified and the legal position is now reliant on ad hoc post-conflict decisions of the ICJ (Higgins 1995). This leaves the Charter principles open to abuse, with potential for perpetrators to justify extreme uses of force as self-defence (Harris 2004). This is also became apparent in 1994, when the UN General Assembly requested ICJ opinion on the question of whether “the threat or use of nuclear weapons in any circumstances are permitted under international law”(Quoted in Dixon and McCorquodale 2003, p534). Cassese also brings to our attention the fact that the SC have five permanent members in support of the use of nuclear weapons in cases of preventing “serious and imminent” nuclear attack and this highlights the danger of policy and external factors influencing interpretation of the law (Cassese 2005). For example, in the absence of Security Council backing, both the United States and the United Kingdom cited Article 51 as legal justification for attacking Afghanistan (Straw, 2001). In the absence of clarification as to what constitutes legal force as self-defence, there is no unequivocal answer regarding the limits of Article 51, which paradoxically can be used as a tool to legitimise what would otherwise constitute state terrorism (Primoratz 2004). It is unlikely that the Charter would intend that states wait for attack in order to use force as self defence in the event of unequivocal prior intelligence confirming armed attack. However, an expansive interpretation is flawed in effectively granting member states licence to determine when they face attack on a subjective basis, completely undermining the objectives of Article 2(4) and akin to leaving “to the two drivers in a motor vehicle collision, the, sole responsibility for apportioning liability, helped only by the unruly crowd gathered at the scene of the accident” (Franck 1970). As Thomas Franck suggests, despite the Charter’s express restriction, the unclear and flexible attitude to force has been exploited by member states such as the United Kingdom and the United States in asserting justification for their attack on Afghanistan on legal grounds. The NATO Treaty 1949 (“the Treaty”) has led to further exploitation of the lacuna in the Charter. The United States and the United Kingdom relied on Article 5 of the Treaty which provides that attack on one of the NATO members shall be considered as an attack on all members. However, the NATO treaty is subservient to the UN Charter as Article 103 of the Charter provides that “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. The effect of Article 103 confirms legal precedence of the Charter in international law and therefore if the legality is questioned under the Charter, arguably a claim to legality under Article 5 of the Treaty is invalid (Cassese 1999). However, until the SC and the ICJ clarify the legal principles regarding legitimate use of force, the potential for exploitation through the Treaty remains a risk. However, the Charter itself has no definitive guide on what constitutes legitimate force and the ICJ has failed to clarify the boundaries of legal force, leaving potential for abuse by member states in justifying force in international conflict. The problem is exacerbated by the influence of political heavyweights within the SC and creates scope for a selective approach to legitimate force motivated by internal agendas as opposed to considerations of what constitutes appropriate force within the realms established international legal principles. Conclusion Arguably, the Bush administration utilised the war on terror at the expense of the rule of law and has attempted to develop new doctrines of self defence that can exploit the deficiencies in the nature of the crime of aggression in order to justify decisions that are difficult to distinguish from existing presumptions regarding state terrorism (Megret, 2002). Worryingly, the uncertainty of the parameters of aggression can be used for nations to increase their power. From the UK perspective, in the face of weak primary justification for invading Iraq and lack of substantive justification, the ambiguity of the definition coupled with the power of the SC and lack of ICC jurisdiction means that dangerous precedents are being set with selective enforcement of aggression (Megret, 2002). Alternatively, it is arguable that terrorism constitutes a crime under customary law, however, Cassesse’s argument raises the issue of how to distinguish between criminal activity against states on basis of bilateral or multilateral co-operation and distinguish between acts of terrorism that come within the jurisdiction of the international criminal court. One option to alleviate the current legal uncertainty would be to expressly provide that any terrorist activity not coming within the definition of a crime against humanity as provided for under international treaty provisions will not constitute an international crime. This will remove the uncertainty of Cassesse’s “discrete” crime argument, which will ameliorate the current ambiguity regarding status of terrorist acts and jurisdiction. Additionally, it is submitted that official consideration should be given to the improvement of the Multilateral International Conventions, which currently provide a patchwork quilt of ad hoc measures (Duffy, 2005). Whilst such measures are welcome in acknowledging the need to address terrorist activities outside the parameters of the various international treaty provisions, the responsive nature of these conventions create gaps in protection, which enable exploitation of the inherent problems of jurisdiction. It has been argued that one way to counter the gaps in protection would be to adopt a multilateral international convention that expressly criminalizes terrorism per se, rather than as a specific crime in international law (Duffy, 2005). The acknowledgment could then be used as a starting point from which to establish extra-territorial jurisdiction over the acts alongside the implementation of extradition and prosecution procedures in respect of such acts. In any event, the first point of call would be to acknowledge and establish an all encompassing definition of terrorism at the international criminal law stage as the current lack of agreement is the central obstacle impeding the improvement of the current lack of adequate jurisdiction to address both state sponsored and non-state terrorism. BIBLIOGRAPHY D, Ackerman (2003) International Law and the Pre-emptive use of force against Iraq. CRS Report for Congress. Mira Banchik (2003) “The International Criminal Court and Terrorism”. 3 Peace, Conflict and Development Tal Becker (2006).Terrorism and the State: Rethinking the Rules of State Responsibility. 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Ashgate, William F Wright (1999) “Limitations on the prosecution of International Terrorists by the International Criminal Court. 16 Harvard Hum Rights 13. LEGISLATION AND WEBSITES Charter of the International Military Tribunal 8 August 1945 www.un.org/aboutun/charter The International Law Commission’s (ILC) Draft Articles on State Responsibility (1996) at www.untreaty.un.org/ilc UN Charter available at www.un.org/aboutun/charter NATO treaty available at www.nato.int Rome Statute of the International Criminal Court (U.N. DOC A/CONF 183/9). See full statute at www.un.org/icc United Nations General Assembly Resolution 3314 of 1974 (XXIX) at www.un.org Other web resources: www.oecd.org www.wto.org www.coe.int www.echr.coe.int Read More