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International Law
University of Florida School of Law
Hernandez-Truyol, Berta Esperanza

International Law – Fall 2015
·         Facts of 9/11
o   All flights were cancelled by 9:59
o   American Airlines and United Airways
o   Flights hijacked were cross country flights
o   9:30 President Bush made the first remarks calling them terrorist attacks
o   UN, SEC, all financial markets in the US closed
o   Giuliani evacuated lower Manhattan
o   1:00 announcement
o   5:00 7 WTC collapsed and then 3 other buildings and a pedestrian bridge collapsed
o   Over 6,000 missing and presumed dead
o   Numbers including rescue personnel
o   Bush was in Florida in a school reading books to school children
o   What was the world’s response? Condemn the acts of terrorists and expressed solidarity
o   Putin was one of the first to express solidarity and to call for retaliation of whoever organized the attacks
o   Who’s to blame? Osama Bin Laden (1957-2011) and Al Qaeda
§  Goal: wanted the US and Christians out of the Arabian Peninsula
§  Did not adhere strictly to his religious beliefs in forming Al Qaeda
§  Musahbi – strict sect of Sunni Islam – wanted it to go back to the 7th Century
§  Having very conservative beliefs did not mind coming together with other strands of Islam in order to reach his goal which was to get all foreign influences out of the Caliph
§  They wanted the Ottoman Empire lands back to the Caliphate
·         The Taliban
o   Wahhabi Islam
o   No cultural goals
o   Want rebirth of Khalifa
o   No critique of all kinds of cultural tropes in forming his coalitions
·         The difference between Al Qaeda and the Taliban
o   Al Qaeda is a non state terrorist organization
o   An entity that is in control of 80% of the state but not a state government – still being an outsider
·         Legal Reactions that the US had:
o   Stopped flights
o   Authorization to use military force was what Congress did which in fact allows – passed by congress and signed by the president = law
§  Passed by huge margins in congress
§  It is delegating Congress’ authority to declare war to the President
o   IEEPA – international emergency economic powers act – invoked by Bush, authorized to employ a huge wide range of economic actions – restricting exports and imports, restricting financial transactions, and freezing assets
§  Bringing any financial transaction to a halt
§  Assets of individuals who may have been involved were frozen
·         NATO
o   Article 5 was invoked: provides for collective self defense – an attack on one NATO member is an attack on all of us and we can use collective powers and forces to use force against the attacker
o   *Attacker is Al Qaeda – not a state
·         Looking at the use of international state organizations invoking Article 5 to attack Al Qaeda – an organization
·         UN
o   Article 2(4) prohibits the use of force
o   51 – exception for self-defense – triggered if state is in imminent danger of an attack
o   Security Council Chapter VII –
o   Resolution 1368
o   Resolution 1373
·         Does the US, President Bush, have the authority to regulate assets in other countries, such as Saudi Arabia, even if those assets belong to US nationals?
o   Bank accounts of wholly owned foreign subsidiaries of US corporations?
o   In international law, a corporation is a citizen of its state of corporation, so technically the US can’t
o   If there is cooperation between the states, that’s okay and anything goes
·         NATO invocation of article 5, first time in its history that it had been invoked
o   Each country still remains considerable discretion on how to react
o   Collective self defense article was invoked, significant symbolically, the US still had a fair amount of discretion on how it wanted to proceed
·         Only 3 countries that recognized the Taliban as the government in control of Afghanistan, which was quickly backpedaled after all this
·         Recognition is an important part of relations
·         UN Reactions:
o   Member states are bound by the resolutions
o   Binding law once the security council issued it for all the member states of the UN
·         Coalition Building
o   Use Pakistan air space
§  Uzbekistan, Kirgizstan, also
o   Former soviet republics facing internal threats from al Qaeda allow US to operate within their territory
o   European countries offer military support
o   Russia provides arms to Northern Alliance
§  Northern Alliance – recognized government of Ganistan
o   China offers public support for war on terrorism (and uses it against its Islamic separatist minority)
·         Coalition building facilitates the ability to carry out the military campaign
o   Operation Enduring Freedom
o   Air space secure for helicopters and planes to bring in troops and materials
o   Taliban is targeted
o   Focus shifted to granting aid to the Northern Alliance
·         Nothing to justify the Kuwaiti invasion
o   What was the international legal basis/justification for the action?
§  If the northern alliance invites, then it is okay
o   Is proportionality required?
o   Is there an ongoing imminent threat, need that for one state to cross over another state’s borders
·         Build coalition, Military campaign, THEN: transition, creating a government, and peace keeping
o   Bonn Compromise
§  Created interim government under Karzai,
§  Interim Afghan administration
·         Loya Jirga – grand council – that sets up 2 year interim government and then eelctions and ratification of a constitution
o   Peacekeeping efforts
§  Resolution 1386 – established International Security Assistance Force to aid maintaining peace and security in Kabul
·         Can take “all necessary measures” to keep peace which translates to permission to use force
·         At first 4,600 troops from 122 countries
·         NATO

§  If the US is using force to assist the existing government, then it is not a breach of sovereign powers over it’s own territory – acting pursuant to the request of the foreign government
§  International law in a civil war – nobody internationally can be involved until the internal dispute is resolved.
§  Military force which is allowed in response to an armed attack, both NATO and Security Council recognized an act of self defense in response to 9/11 even if there had been no request by the northern alliance for assistance, then it wasn’t an attack on Afghanistan
§  International law regulates the way in which force is used
·         The use of force and how it is used
·         Whether can be used
·         And even if it can, there are regulations as to how
·         Ex. International law prohibits internationally targeting of civilians
o   Peacekeeping
§  December, after Taliban had been defeated in Afghanistan, Security council passed another resolution – international peace keeping mission
·         Again uses language of “any necessary measures” = you can use force
·         To maintain the peace and security on the ground
·         Kept extending it’s stays
o   Rights of Detainees
§  These are still an issue
§  The individuals could be POW’s covered by 3rd Geneva convention – gives them to a right to certain types of treatment and the release at the end of certain types of hostilities
§  Pres. Bush said this does not apply at all because these are illegal combatants
§  Detainees not fighting for a state – maybe fighting for Afghanistan but not recognized
§  Not entitled to prisoner of war status because they did not wear uniforms, do not carry arms openly as required by the Convention
§  If there is any doubt as to a detainees status, it can be determined by a competent tribunal
§  Military tribunal was set up – to challenge under international law, the detainees can file a habeas action (in US court) – is there any procedural right with respect to habeas petitions (foreigners being held abroad? Yes)
§  Military tribunals? Are these regularly constituted courts?
·         US has detained US citizens in the US as enemy combatants, can you hold your own citizens within your own borders as enemy combatants and deny them procedural and substantive rights?
·         Clearly have habeas jurisdiction