Babysitting Terrorists: Should States Be Strictly Liable for Failing to Prevent Transborder Attacks?

Abstract

9/11 changed the world forever: a phrase that is now considered cliché but nonetheless accurate with regard to international law. The 2001 military campaign in Afghanistan equally shocked the legal community and propelled the issue of international state responsibility to the forefront of academic debate. Since 9/11, much has been written on the legality of U.S. action in Afghanistan, with particular emphasis on the parameters of the use of force and the corresponding shift in the law of jus ad bellum. Unfortunately, the precise question of indirect state responsibility for failing to prevent terrorist attacks remains somewhat elusive to this day. In this article, I purport to delineate the parameters of this specific regime of indirect responsibility, given that the literature and jurisprudence are far from dispositive on the matter. Although little consensus has been achieved on this issue, it is widely recognized that host-states have a categorical obligation to prevent terrorist attacks emanating from their territory. However, the contours of this obligation of prevention are far more problematic, both in terms of legal content and policy. My analysis commences with a brief overview of the direct/indirect responsibility dichotomy, along with a presentation of the concept of attribution in international law. The first objective of the article is to trace the modern evolution of indirect state responsibility vis-a-vis terrorism, especially since the Beirut raid. In doing so, Professor Bowett's work on Israeli reprisals and use of force in the 1960s, along with several historical accounts, are considered as a starting point. Secondly, I identify a significant shift in international law towards a model of indirect state responsibility, evidenced by recent Security Council and state practice. Three pivotal developments assist me in ascertaining this evolution: the post-Beirut raid jurisprudence, which includes the Nicaragua, Tehran, and Tadic decisions, the ILC's adoption of the Draft articles on the Responsibility of States for Internationally Wrongful Acts in 2001, and the U.S.-led military campaign in Afghanistan. Finally, I conclude that the concept of attribution should be excised altogether from the equation of state responsibility in the context of modern terrorism. After analogizing the domestic products liability paradigm to the war on terror, I propose the implementation of a two-tiered strict liability model in assessing the responsibility of sanctuary states. The discussion, which is pervaded by a tension between upholding sovereignty and combating terrorism efficiently, ultimately leads to the exploration of the obligation of prevention.

Keywords: terrorism, international law, state responsibility, attribution, international obligations, International Court of Justice, strict liability, United Nations Security Council, products liability, domestic law analogies, use of force

JEL Classification: K33, K19