Terrorism and the Rule of Law
reprinted with updates in The International Humanitarian Law Dialogs, August 29, 2007: Celebrating the 100th Anniversary of The Hague Rules of 1907 (American Society of International Law 2008)
20 Pages Posted: 24 Apr 2003 Last revised: 11 Sep 2020
Date Written: February 14, 2003
In Terrorism and the Rule of Law, I argue that a "rule of law" approach to the use of force is not only required by the United Nations Charter framework, but is the strategy most likely to be successful in the long term in protecting the national security of the United States. Specifically, rather than attempting a post-hoc rationalization of what the United States did after September 11, 2001, I suggest that what it could and should have done was to obtain a Security Council Resolution specifically authorizing the Afghan campaign. Such a Resolution would have been, in my view, not only attainable, but desirable. I conclude that the U.S. lost a tremendous opportunity to reinforce norms of international law that could now assist it in its struggle against international terrorism, and suggest that the current unilateralist tendencies of the government are generally destabilizing and potentially injurious to U.S. interests.
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