* Ben N. Dunlap is the Solicitations and Symposium Editor of the Boston College International & Comparative Law Review. 1 Adrian Blomfield, U.S. Snatches Terror Suspect in Somalia, Daily Telegraph (London), Mar. 20, 2003, at 17. The suspected terrorist was a Yemeni with a South African passport hiding in Somalia. Id. 2Id. 3See U.S. State Department, Background Note: Somalia (Oct. 2003), http://www. state.gov/r/pa/ei/bgn/2863pf.htm. 4 Thom Shanker & James Risen, Rumsfeld Weighs New Covert Acts by Military Units, N.Y. Times, Aug. 12, 2002, at A1. 5SeeThe National Security Strategy of the United States of America 1, 1011 (2002) [hereinafter National Security Strategy]. 6See Gerald B. Helman & Steven R. Ratner, Saving Failed States, Foreign Poly, Dec. 1992, at 3. But cf. generally Ralph Wilde, The Skewed Responsibility Narrative of the Failed States Concept, 9 ILSA J. Intl & Comp. L. 425 (2003). 7SeeNational Security Strategy, supra note 5, at 1011. 8See Sebastian Mallaby, The Reluctant Imperialist: Terrorism, Failed States, and the Case for the American Empire, Foreign Affairs, Mar.--Apr. 2002, LEXIS, News Library, Forafr File; Susan E. Rice, U.S. Foreign Assistance and Failed States, Working Paper for the Brookings Website, at http://www.brook.edu/views/papers/rice/20021125.htm (Nov. 25, 2002). There are some exceptions to this proposition, however, as in the case of the Sudan, which is both a state sponsor of terrorism and a failed state. See Gerard Prunier & Rachel M. Gisselquist, The Sudan: A Successfully Failed State, inState Failure and State Weakness in a Time of Terror 101 (Robert I. Rotberg ed., 2003) (The Sudan today is indeed a failed state . . . .); U.S. State Department, Patterns of Global Terrorism 68 (2002), http://www.state.gov/s/ ct/rls/pgtrpt/2001/pdf/ (Sudan . . . remained a designated state sponsor of terrorism.). This paradox may be explained by the fact that the Sudans government, to the extent it functions, has provided support for terrorist organizations. Moreover, the Sudan is essentially split between the partially functioning north and nonfunctioning south. See Robert I. Rotberg, The New Nature of Nation-State Failure, 25 Wash. Q. 85, 88 (2002). 9 Rice, supra note 8. 10 Robert I. Rotberg, Failed States in a World of Terror, Foreign Affairs, July--Aug. 2002, LEXIS, News Library, Forafr File [hereinafter Rotberg, Failed States in a World of Terror]. 11SeeNational Security Strategy, supra note 5, at 1, 1011. 12Id. at 1. 13Id. at v. 14See id. at v, 1. See generallyBrian Jenkins, Countering Al Qaeda: An Appreciation of the Situation and Suggestions for Strategy 1721 (2002); Mallaby, supra note 8. 15 Rotberg, Failed States in a World of Terror, supra note 10; Rice, supra note 8. 16National Security Strategy, supra note 5, at 1011. It remains to be seen whether significant resources will be devoted to the long-term, non-military task of shoring up weak governments around the world (not only in Africa, but in Asia, Europe, and Latin America too) by a U.S. administration focused on short-term, military solutions. See,e.g., Marc Lacey, Somalia Talks Are Stormy, But They Still Inch Ahead, N.Y. Times, Jan. 19, 2003, § 1, at 8 (describing lack of U.S. engagement in the peace process in Somalia, despite concerns about instability and terrorism). 17Seegenerally Tom Carothers, Promoting Democracy and Fighting Terror, Foreign Affairs, Jan.--Feb. 2003, LEXIS, News Library, Forafr File; Mallaby, supra note 8 (discussing the costs of institution-building in failed states). 18SeeHenry Kissinger, Diplomacy 45354 (1994) (describing the United States level of commitment to democracy-building after World War II); Mallaby, supra note 8. 19See generallyDana Priest, The Mission: Waging War and Keeping Peace with Americas Military 17981 (2003) (describing the challenges of providing training to military personnel in a weak state like Nigeria). 20SeeNational Security Strategy, supra note 5, at 15. 21 David E. Sanger & Steven R. Weisman, Bushs Aides Envision New Influence in Region, N.Y. Times, Apr. 10, 2003, at B11. 22SeeNational Security Strategy, supra note 5, at 15. 23See Thom Shanker & Eric Schmitt, U.S. Moves Commandos to Base in East Africa, N.Y. Times, Sept. 18, 2002, at A20 (The Pentagon is even now drafting potential tactics for covert missions against terrorists in countries where there is no responsible local government or where the local authorities would object to American action.). 24See John Donnelly, Terrorism Traced to Somalia: Citing Terror Threat, U.S. Boosts Military, Intelligence in Somalia, Boston Globe, Dec. 6, 2002, at A1 (noting that U.S. special forces have been operating inside Somalia during recent months on a variety of surveillance missions); Mark Fineman, New Phase of War on Terror Moves to E. Africa, L.A. Times, Dec. 21, 2002, at A1 (discussing U.S. plans to trackand attackterrorist suspects throughout the seven-nation region of Somalia, Yemen, Kenya, Ethiopia, Eritrea, Djibouti, and Sudan); Shanker & Risen, supra note 4 (reporting Pentagon plans to send Special Forces to capture or kill al Qaeda members in countries where the United States is not at open war and, in some cases, where the local government is not informed of their presence). 25See Donnelly, supra note 24 (describing a U.S. Predator drone attack in Yemen that killed a senior al Qaeda official and the opening of a base camp in Djibouti for U.S. special forces and CIA teams that will carry out missions throughout the Horn of Africa). See generallyPriest, supra note 19, at 12728 (describing the types of missions, including counterterrorist assaults, carried out by special forces units). 26See Shanker & Risen, supra note 4. 27 Shanker & Schmitt, supra note 23. 28Id. 29Id. 30 This Note does not address the legality of assassinations or targeted killings of suspected terrorists. For more on that question, see generally Nathan Canestaro, American Law and Policy on Assassinations of Foreign Leaders: The Practicality of Maintaining the Status Quo, 27 B.C. Intl & Comp. L. Rev. 1 (2003). 31See, e.g., For Whom the Liberty Bell Tolls, The Economist, Aug. 31, 2002, at 1820. 32See,e.g., Back to the Jungle, The Economist, Mar. 1, 2003, at 41 (American troops are on their way back to the Philippines. . . . to help the Philippine army wipe out Abu Sayyaf, a gang . . . on Americas list of terrorists.); The Other War, The Economist, Mar. 8, 2003, at 24 (describing the capture by Pakistani authorities of al Qaeda suspect Khalid Sheikh Mohammed); When Local Anger Joins Global Hate, The Economist, Oct. 19, 2002, at 23 (Indonesia had just begun to crack down both on possible international terrorists and on local militant groups. Since September 11th, it had been co-operating with America behind the scenes . . . .). 33Seegenerally Rice, supra note 8 (discussing the inability of failed states to control their territory). 34See id. 35See Rachel Stohl & Michael Stohl, Fatally Flawed? U.S. Policy Toward Failed States, The Defense Monitor, Oct. 2001, at 1. 36Seegenerally Robert I. Rotberg, Failed States, Collapsed States, Weak States: Causes and Indicators, inState Failure and State Weakness in a Time of Terror, supra note 8, at 310 (discussing the flawed institutions and infrastructure associated with failed states) [hereinafter Rotberg, Failed States, Collapsed States, Weak States]. 37See id. at 2 (citing the inability to deliver political goods as a distinguishing characteristic of failed states). 38See Rotberg, Failed States in a World of Terror, supra note 10. 39See Rotberg, Failed States, Collapsed States, Weak States, supra note 36, at 3. 40 Prunier & Gisselquist, supra note 8, at 101. 41Id. at 103. 42Id. 43Id. 44Id. 45U.S. State Department, supra note 8. 46See Rotberg, Failed States in a World of Terror, supra note 10. 47 Bryan Bender, U.S. Aids Yemens Antiterror Units, Boston Globe, Mar. 13, 2002, at A27. 48Id. 49 Douglas Frantz, Unsafe Havens: Around the World, Hints of Afghanistans to Come, N.Y. Times, May 26, 2002, § 4, at 5; see also Donnelly, supra note 24. 50 Rotberg, Failed States, Collapsed States, Weak States, supra note 36, at 10. 51See Rice, supra note 8 (discussing categories of failed or failing states). 52See Rotberg, Failed States in a World of Terror, supra note 10; Rice, supra note 8. 53 Frantz, supra note 49. 54 For example, some scholars argued that Russia was on the verge of state failure in the late 1990s. See Paul Goble, When States Fail, Radio Free Europe/Radio Liberty (Aug. 26, 1998), at http://www.rferl.org/features/1998/08/f.ru.980826124223.asp. See generallyAnatol Lieven, Chechnya: Tombstone of Russian Power 12 (1998). 55See Rotberg, Failed States in a World of Terror, supra note 10. 56See id. 57See Rice, supra note 8. 58See Rotberg, Failed States in a World of Terror, supra note 10. 59See Mallaby, supra note 8; U.S. State Department, supra note 3. 60See Rotberg, Failed States in a World of Terror, supra note 10 (discussing the inability of failed states to project power within their borders). 61See Rice, supra note 8. 62Id. 63See Moises Naim, The Five Wars of Globalization, Foreign Poly, Jan.--Feb. 2003, at 35. 64See Michael Bonafede, Here, There, and Everywhere: Assessing the Proportionality Doctrine and U.S. Uses of Force in Response to Terrorism after the September 11 Attacks, 88 Cornell L. Rev. 155, 190 (2002) (discussing the breakdown of the proportionality doctrine in the context of international terrorism). 65See U.S. State Department, supra note 3 (describing the lack of central government, legal system, and national security force in Somalia). The United States has worked closely with some very weak governments on counterterrorism operations. See Seymour M. Hersh, Manhunt: The Bush Administrations New Strategy in the War Against Terrorism, The New Yorker, Dec. 23, 2002, LEXIS, News Library, Newyrk File (describing a joint American-Yemeni mission to kill a suspected al Qaeda member in Yemen). It has chosen not to work with some other governments. See Blomfield, supra note 1 (noting lack of cooperation on the part of the Somali transitional government in a U.S. raid to capture a suspected al Qaeda terrorist). 66SeeJoseph S. Nye, Jr., The Paradox of American Power: Why the Worlds Only Superpower Cant Go It Alone 75 (2002) (noting the illusory nature of traditional measures of Americas predominance). 67Seeid. at 93; John Lewis Gaddis, A Grand Strategy, Foreign Poly, Nov.--Dec. 2002, at 5152. 68 Address Before a Joint Session of Congress on the United States Response to the Terrorist Attacks of September 11, Weekly Comp. Pres. Doc. 1349 (Sept. 20, 2001). 69See,e.g., The Other War, supra note 32, at 24. 70SeegenerallyFor Whom the Liberty Bell Tolls, supra note 31, at 1820. 71See generally id. (discussing the enactment and enforcement of strict antiterrorism measures). 72See generallyJenkins, supra note 14, at 1721 (describing the threats posed by the al Qaeda terrorist organization). 73See generallyThomas Friedman, The Lexus and the Olive Tree: Understanding Globalization 32529 (1999) (discussing how the availability of technology has empowered individual terrorists). 74See id. 75See id. 76See id.; Follow the Leader, The Economist, Dec. 1, 2001, at 23 (describing how Osama bin Ladens followers warned him of an imminent U.S. missile attack against him using a sophisticated radio network). 77See Mallaby, supra note 8. 78See id. (discussing how trade in black market diamonds has benefited Lebanons Hezbollah). 79See generallyJessica Stern, The Ultimate Terrorists 9 (1999). 80SeeNational Security Strategy, supra note 5, at 15. 81See Mark Huband, Terrorism Comes In from Edge of the World, Fin. Times (London), Sept. 5, 2002, at 9 (noting the mass casualties that occurred on September 11, 2001). 82SeeStern, supra note 79, at 12 (noting the devastation that a nuclear attack would cause in Manhattan). 83Seeid. 84Id. at 76 (quoting Rand Corporation analyst Brian Jenkins). 85Seegenerally David Fromkin, The Strategy of Terrorism, Foreign Affairs, July 1975, reprinted inThe American Encounter 336, 34547(James F. Hoge, Jr. & Fareed Zakaria eds., 1997) (noting changing trends in international terrorism). 86See id. at 345. 87See id. at 347; Stern, supra note 79, at 76. 88SeeNational Security Strategy, supra note 5, at 15. 89See Robin Allen & Carola Hoyos, Millionaire, Terrorist, Fugitive, Fin. Times (London), Apr. 14, 2001, at 1 (noting Osama bin Ladens call to kill U.S. and British citizens anywhere in the world); Huband, supra note 81. 90U.S. State Department, supra note 8. 91Paul K. Davis & Brian Jenkins, Deterrence and Influence in Counterterrorism: A Component in the War on Al Qaeda 4 (2002) (citing the appearance of mass casualties in terrorist attacks). 92SeeNational Security Strategy, supra note 5, at 15; Alan B. Krueger & Jitka Maleckova, Does Poverty Cause Terrorism? The Economics and the Education of Suicide Bombers, The New Republic, June 24, 2002, LEXIS, News Library, Newrpb File. 93See James Bennet, Suicide Bombing on Bus in Israel Leaves 15 Dead, N.Y. Times, Mar. 6, 2003, at A1; Dexter Filkins, Pair of Bombers Kill 23 in Israel; Reprisals Begin, N.Y. Times, Jan. 6, 2003, at A1; Thomas Friedman, Dead End, N.Y. Times, Sept. 25, 2002, at A21; Michael R. Gordon, Suicide Bomber Kills Israeli Soldier, Ending 6 Weeks of Quiet, N.Y. Times, Sept. 19, 2002, at A9. 94 Thanassis Cambanis, Sentenced to Life, Reid Denounces US, Boston Globe, Jan. 31, 2003, at A1; Thanassis Cambanis, Shoebombers Low-Tech Style Is Seen As Future of Terrorism, Boston Globe, Jan. 30, 2003, at B1. 95Seegenerally Bonafede, supra note 64, at 17181. 96SeeNational Security Strategy, supra note 5, at 15. 97U.N. Charter art. 2, para. 4. 98Id. 99See U.N. Charter art. 51. Given the difficulties associated with obtaining U.N. Security Council authorization for their military action, states have more often justified their use of force as an exercise of their right of self-defense under Article 51 of the U.N. Charter. See Bonafede, supra note 64, at 17181. 100 U.N. Charter art. 51. 101See id. 102See Michael J. Glennon, The Fog of War: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 Harv. J.L. & Pub. Poly 539, 54145 (2002) (citing the requirement of substantial involvement between the state and terrorist to implicate state responsibility). 103Seeid. at 541. 104See Anthony Clark Arend, International Law and Rogue States: The Failure of the Charter Framework, 36 New Eng. L. Rev. 735, 739 (2002). 105Seeid. at 740. 106 Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, at 103 (June 27). 107See Glennon, supra note 102, at 543 (suggesting the need for substantial involvement on the part of the host state for the attribution requirement to be met). 108Seeid. 109See id. 110 Prosecutor v. Tadic, Appeal Judgment, Case No. IT-941-A, PP 1338 (Intl Crim. Trib. for Former Yugoslavia App. Chamber 1999), http://www.un.org/icty/tadic/appeal/ judgement/tad-aj990715e.pdf. 111Report of the International Law Commission on the Work of Its Fifty-Third Session, U.N. GAOR International Law Commission, 55th Sess., at 45, U.N. Doc. A/56/10 (2001) [hereinafter ILC Report]. 112See Benjamin Langille, Its Instant Custom: How the Bush Doctrine Became Law After the Terrorist Attacks of September 11, 2001, 27 B.C. Intl & Comp. L. Rev. 154 (2003). 113Letter Dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, U.N. SCOR, U.N. Doc. S/2001/946 (2001) [hereinafter Letter from Representative of the U.S.]. 114Id. 115Id. 116See Langille, supra note 112, at 15455. 117U.N. Charter art. 51. 118Seegenerally Arend, supra note 104, at 743 (noting that the goal of eliminating weapons of mass destruction may not justify preemptive use of force). 119See Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 Wis. Intl L.J. 145, 164 (2000). 120 Arend, supra note 104, at 74344. 121See Letter from Representative of the U.S., supra note 113. 122See Glennon, supra note 102, at 54145; Harold Hongju Koh, The Spirit of the Laws, 43 Harv. Intl L.J. 23, 28 (2002). 123Seeid. 124See, e.g., Rice, supra note 8; U.S. State Department, supra note 3 (stating that because Somalia has no national government at present . . . [e]conomic sanctions were applied [directly to the terrorist group] Al-Ittihad). 125SeeILCReport, supra note 111 (a terrorist threat coming from a failed state does not meet the state attribution requirements in Article 8 of the Draft Articles included in the Report). 126See U.N. Charter art. 51; Glennon, supra note 102, at 54345. 127See Koh, supra note 122, at 28 (citing the need to rethink Article 2(4) in the case of preventing terrorist attacks). 128SeeU.N. Charter art. 51. 129See id.; Travalio, supra note 119, at 166. 130U.N. Charter art. 2, para. 4. 131See Travalio, supra note 119, at 166. 132Id. at 167. 133Id. 134Id. 135 U.N. SCOR, 56th Sess., 4385th mtg. at 1, U.N. Doc. S/Res/1373 (2001); U.N. SCOR, 56th Sess., 4370th mtg. at 1, U.N. Doc. S/Res/1368 (2001). 136 Travalio, supra note 119, at 169 (quoting Rosalyn Higgins, Problems & Process: International Law and How We Use It 240 (1994)). 137 Travalio, supra note 119, at 169. 138See Chae Chan Ping v. United States, 130 U.S. 581, 60304, 609 (1889) (finding that jurisdiction over its own territory . . . is an incident of every independent nation and the power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of these sovereign powers delegated by the Constitution, the right to its exercise . . . cannot be . . . restrained on behalf of any one). 139See, e.g., U.N. SCOR, 15th Sess., 865th mtg., at 4, U.N. Doc. S/4349 (1960) (resolving that the incursion of Israeli agents into Argentina to capture war criminal Adolf Eichmann was a violation of the sovereignty of the Argentine Republic). 140SeeMichael Glennon, Limits of Law, Prerogatives of Power: Interventionism After Kosovo 22 (2001) (suggesting that NATOs use of force against Yugoslavia in 1999 violated Yugoslavias territorial integrity). 141See Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone, 14 Am. U. Intl L. Rev. 321, 34445 (1998). 142U.N. Charter art. 2, para. 7. 143See id. 144See Travalio, supra note 119, at 169. 145See Rotberg, Failed States, Collapsed States, Weak States, supra note 36, at 2. 146See Koh, supra note 122, at 28; Travalio, supra note 119, at 165 (noting the inapplicability of current interpretations of Article 2(4) to the use of force to prevent terrorist attacks). 147See Travalio, supra note 119, at 166. 148See id.; Rice, supra note 8 (defining failed states as countries in which the central government does not exert effective control over, nor is it able to deliver vital services to, significant parts of its own territory due to conflict, ineffective governance or state collapse). 149See id. 150See Travalio, supra note 119, at 166. 151See Shanker & Risen, supra note 4. 152See Bonafede, supra note 64, at 194 n.219. 153See Thomas D. Grant, Defining Statehood: The Montevideo Convention and Its Discontents, 37 Colum. J. Transnatl L. 403, 435 (1999) (noting that lack of effective control over territory does not imply loss of statehood). 154See id. 155Seeid. 156Id. at 414. 157Id. at 435. 158See Nowrot & Schabacker, supra note 141, at 339. 159Id. 160See Putins Georgia Ploy, Boston Globe, Sept. 16, 2002, at A14. 161 Rice, supra note 8. 162See Stephen Sestanovich, Putin Has His Own Candidate for Pre-Emption, N.Y. Times, Oct. 6, 2002, § 4, at 14. 163Seeid. 164See id. 165See Travalio, supra note 119, at 173. 166See, e.g., Afghanistans Civilian Casualties, N.Y. Times, Feb. 13, 2002, at A30; see also Hersh, supra note 65 (describing a joint U.S.-Yemeni counterterrorism operation in Yemen where an attack on a group of Bedouins traveling in the desert incorrectly identified by U.S. intelligence as al Qaeda members was called off at the last moment when a Yemeni official discovered the mistake). 167See Thomas Donnelly & Vance Serchuk, Leave No Continent Behind, Wash. Post, July 7, 2003, at A17 (noting U.S. unwillingness to engage in peacekeeping in the Democratic Republic of Congo and Liberia, and the withdrawal of U.S. peacekeepers from Somalia in 1993). 168See id.; Pamela Constable, Afghan Poppies Sprout Again, Wash. Post, Nov. 10, 2003, at A16 (discussing the explosive growth in poppy production in Afghanistan by impoverished farmers after U.S.-led military operations there). 169See Henry J. Richardson, III, Failed States, Self-Determination and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations, 10 Temp. Intl & Comp. L.J. 1, 8 (1996). 170See Tim Weiner & Lydia Polgreen, Facing New Crisis, Haiti Again Relies on U.S. Military to Keep Order, N.Y. Times, Mar. 7, 2004, § 1, at 18 (discussing the United States premature departure from Haiti in 1996, following the 1994 military intervention). 171SeegenerallyJenkins, supra note 14, at 1721 (describing the unique nature of the al Qaeda terrorist organization). 172See Bonafede, supra note 64, at 90. 173See Koh, supra note 122, at 28. But cf. Richardson, supra note 169, at 8. 174See Nowrot & Schabacker, supra note 141, at 339. 175 Veto power in the U.N. Security Council should rule out politically-motivated, illegitimate designation of certain states as a pretext for invasion. The United States, for instance, would likely veto a Russian proposal to designate its neighbor Georgia as a failed state. See Sestanovich, supra note 162. Alternatively, another permanent member of the Security Council could have political motivations to veto a U.S. proposal to designate Somalia or Sudan as a failed state. 176See Grant, supra note 153, at 438. 177 Indeed, Somalias collapse in 1992 was recognized in Security Council Resolutions 794 and 814, which authorized the unsuccessful Operation Restore Hope mission. Walter S. Clarke & Robert Gosende, Somalia: Can a Collapsed State Reconstitute Itself?, inState Failure and State Weakness in a Time of Terror,supra note 8, at 142. 178But cf. Ruth Gordon, Saving Failed States: Sometimes a Neocolonialist Notion, Am. U. J. Intl L. & Poly 903, 924 (1997) (describing proposals to recolonize failed states and noting the problems such proposals involve). 179See,e.g., United Nations Dept of Pub. Information, The United Nations and Cambodia, 19911995, at 510 (1995). 180See, e.g., ILC Report, supra note 111, at 49 (discussing necessity doctrine allowing states to act to safeguard an essential interest against a grave and imminent peril). 181See id. 182See id. 183See discussion of U.N. Charter art. 2, para. 4, supra notes 12730 and accompanying text. 184See Bonafede, supra note 64, at 165 (discussing the Caroline case as customary international law). 185National Security Strategy, supra note 5, at 15 (For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack.). 186See Bonafede, supra note 64, at 166. 187See id. 188See Travalio, supra note 119, at 162. 189See id. 190See Bonafede, supra note 64, at 166. 191See id. 192See Shanker & Risen, supra note 4. 193See Koh, supra note 122, at 28 (suggesting that intervention to prevent crimes against humanity, including massive terrorist attacks, would outweigh the costs of violating another states sovereignty). 194See id.