* 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.
2 Id.
3 See 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.
5 See The National Security Strategy of the United States of America 1, 10–11 (2002) [hereinafter National Security Strategy].
6 See Gerald B. Helman & Steven R. Ratner, Saving Failed States, Foreign Pol’y, Dec. 1992, at 3. But cf. generally Ralph Wilde, The Skewed Responsibility Narrative of the ‘Failed States’ Concept, 9 ILSA J. Int’l & Comp. L. 425 (2003).
7 See National Security Strategy, supra note 5, at 10–11.
8 See 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, in State 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 Sudan’s 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].
11 See National Security Strategy, supra note 5, at 1, 10–11.
12 Id. at 1.
13 Id. at v.
14 See id. at v, 1. See generally Brian Jenkins, Countering Al Qaeda: An Appreciation of the Situation and Suggestions for Strategy 17–21 (2002); Mallaby, supra note 8.
15 Rotberg, Failed States in a World of Terror, supra note 10; Rice, supra note 8.
16 National Security Strategy, supra note 5, at 10–11. 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).
17 See generally 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).
18 See Henry Kissinger, Diplomacy 453–54 (1994) (describing the United States’ level of commitment to democracy-building after World War II); Mallaby, supra note 8.
19 See generally Dana Priest, The Mission: Waging War and Keeping Peace with America’s Military 179–81 (2003) (describing the challenges of providing training to military personnel in a weak state like Nigeria).
20 See National Security Strategy, supra note 5, at 15.
21 David E. Sanger & Steven R. Weisman, Bush’s Aides Envision New Influence in Region, N.Y. Times, Apr. 10, 2003, at B11.
22 See National Security Strategy, supra note 5, at 15.
23 See 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.”).
24 See 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 “track—and attack—terrorist 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”).
25 See 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 generally Priest, supra note 19, at 127–28 (describing the types of missions, including counterterrorist assaults, carried out by special forces units).
26 See Shanker & Risen, supra note 4.
27 Shanker & Schmitt, supra note 23.
28 Id.
29 Id.
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. Int’l & Comp. L. Rev. 1 (2003).
31 See, e.g., For Whom the Liberty Bell Tolls, The Economist, Aug. 31, 2002, at 18–20.
32 See, 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 America’s 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 . . . .”).
33 See generally Rice, supra note 8 (discussing the inability of failed states to control their territory).
34 See id.
35 See Rachel Stohl & Michael Stohl, Fatally Flawed? U.S. Policy Toward Failed States, The Defense Monitor, Oct. 2001, at 1.
36 See generally Robert I. Rotberg, Failed States, Collapsed States, Weak States: Causes and Indicators, in State Failure and State Weakness in a Time of Terror, supra note 8, at 3–10 (discussing the flawed institutions and infrastructure associated with failed states) [hereinafter Rotberg, Failed States, Collapsed States, Weak States].
37 See id. at 2 (citing the inability to deliver political goods as a distinguishing characteristic of failed states).
38 See Rotberg, Failed States in a World of Terror, supra note 10.
39 See Rotberg, Failed States, Collapsed States, Weak States, supra note 36, at 3.
40 Prunier & Gisselquist, supra note 8, at 101.
41 Id. at 103.
42 Id.
43 Id.
44 Id.
45 U.S. State Department, supra note 8.
46 See Rotberg, Failed States in a World of Terror, supra note 10.
47 Bryan Bender, U.S. Aids Yemen’s Antiterror Units, Boston Globe, Mar. 13, 2002, at A27.
48 Id.
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.
51 See Rice, supra note 8 (discussing categories of failed or failing states).
52 See 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 generally Anatol Lieven, Chechnya: Tombstone of Russian Power 1–2 (1998).
55 See Rotberg, Failed States in a World of Terror, supra note 10.
56 See id.
57 See Rice, supra note 8.
58 See Rotberg, Failed States in a World of Terror, supra note 10.
59 See Mallaby, supra note 8; U.S. State Department, supra note 3.
60 See Rotberg, Failed States in a World of Terror, supra note 10 (discussing the inability of failed states to project power within their borders).
61 See Rice, supra note 8.
62 Id.
63 See Moises Naim, The Five Wars of Globalization, Foreign Pol’y, Jan.--Feb. 2003, at 35.
64 See 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).
65 See 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 Administration’s 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).
66 See Joseph S. Nye, Jr., The Paradox of American Power: Why the World’s Only Superpower Can’t Go It Alone 75 (2002) (noting the illusory nature of traditional measures of America’s predominance).
67 See id. at 93; John Lewis Gaddis, A Grand Strategy, Foreign Pol’y, Nov.--Dec. 2002, at 51–52.
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).
69 See, e.g., The Other War, supra note 32, at 24.
70 See generally For Whom the Liberty Bell Tolls, supra note 31, at 18–20.
71 See generally id. (discussing the enactment and enforcement of strict antiterrorism measures).
72 See generally Jenkins, supra note 14, at 17–21 (describing the threats posed by the al Qaeda terrorist organization).
73 See generally Thomas Friedman, The Lexus and the Olive Tree: Understanding Globalization 325–29 (1999) (discussing how the availability of technology has empowered individual terrorists).
74 See id.
75 See id.
76 See id.; Follow the Leader, The Economist, Dec. 1, 2001, at 23 (describing how Osama bin Laden’s followers warned him of an imminent U.S. missile attack against him using a sophisticated radio network).
77 See Mallaby, supra note 8.
78 See id. (discussing how trade in black market diamonds has benefited Lebanon’s Hezbollah).
79 See generally Jessica Stern, The Ultimate Terrorists 9 (1999).
80 See National Security Strategy, supra note 5, at 15.
81 See 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).
82 See Stern, supra note 79, at 1–2 (noting the devastation that a nuclear attack would cause in Manhattan).
83 See id.
84 Id. at 76 (quoting Rand Corporation analyst Brian Jenkins).
85 See generally David Fromkin, The Strategy of Terrorism, Foreign Affairs, July 1975, reprinted in The American Encounter 336, 345–47 (James F. Hoge, Jr. & Fareed Zakaria eds., 1997) (noting changing trends in international terrorism).
86 See id. at 345.
87 See id. at 347; Stern, supra note 79, at 76.
88 See National Security Strategy, supra note 5, at 15.
89 See Robin Allen & Carola Hoyos, Millionaire, Terrorist, Fugitive, Fin. Times (London), Apr. 14, 2001, at 1 (noting Osama bin Laden’s call to kill U.S. and British citizens anywhere in the world); Huband, supra note 81.
90 U.S. State Department, supra note 8.
91 Paul 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).
92 See National 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.
93 See 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, Shoebomber’s Low-Tech Style Is Seen As Future of Terrorism, Boston Globe, Jan. 30, 2003, at B1.
95 See generally Bonafede, supra note 64, at 171–81.
96 See National Security Strategy, supra note 5, at 15.
97 U.N. Charter art. 2, para. 4.
98 Id.
99 See 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 171–81.
100 U.N. Charter art. 51.
101 See id.
102 See 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. Pol’y 539, 541–45 (2002) (citing the requirement of substantial involvement between the state and terrorist to implicate state responsibility).
103 See id. at 541.
104 See Anthony Clark Arend, International Law and Rogue States: The Failure of the Charter Framework, 36 New Eng. L. Rev. 735, 739 (2002).
105 See id. at 740.
106 Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, at 103 (June 27).
107 See 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).
108 See id.
109 See id.
110 Prosecutor v. Tadic, Appeal Judgment, Case No. IT-94–1-A, PP 13–38 (Int’l Crim. Trib. for Former Yugoslavia App. Chamber 1999), http://www.un.org/icty/tadic/appeal/
judgement/tad-aj990715e.pdf.
111 Report 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].
112 See Benjamin Langille, It’s “Instant Custom”: How the Bush Doctrine Became Law After the Terrorist Attacks of September 11, 2001, 27 B.C. Int’l & Comp. L. Rev. 154 (2003).
113 Letter 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.].
114 Id.
115 Id.
116 See Langille, supra note 112, at 154–55.
117 U.N. Charter art. 51.
118 See generally Arend, supra note 104, at 743 (noting that the goal of eliminating weapons of mass destruction may not justify preemptive use of force).
119 See Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 Wis. Int’l L.J. 145, 164 (2000).
120 Arend, supra note 104, at 743–44.
121 See Letter from Representative of the U.S., supra note 113.
122 See Glennon, supra note 102, at 541–45; Harold Hongju Koh, The Spirit of the Laws, 43 Harv. Int’l L.J. 23, 28 (2002).
123 See id.
124 See, 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”).
125 See ILC Report, 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).
126 See U.N. Charter art. 51; Glennon, supra note 102, at 543–45.
127 See Koh, supra note 122, at 28 (citing the need to rethink Article 2(4) in the case of preventing terrorist attacks).
128 See U.N. Charter art. 51.
129 See id.; Travalio, supra note 119, at 166.
130 U.N. Charter art. 2, para. 4.
131 See Travalio, supra note 119, at 166.
132 Id. at 167.
133 Id.
134 Id.
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.
138 See Chae Chan Ping v. United States, 130 U.S. 581, 603–04, 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”).
139 See, 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”).
140 See Michael Glennon, Limits of Law, Prerogatives of Power: Interventionism After Kosovo 22 (2001) (suggesting that NATO’s use of force against Yugoslavia in 1999 violated Yugoslavia’s territorial integrity).
141 See 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. Int’l L. Rev. 321, 344–45 (1998).
142 U.N. Charter art. 2, para. 7.
143 See id.
144 See Travalio, supra note 119, at 169.
145 See Rotberg, Failed States, Collapsed States, Weak States, supra note 36, at 2.
146 See 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).
147 See Travalio, supra note 119, at 166.
148 See 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”).
149 See id.
150 See Travalio, supra note 119, at 166.
151 See Shanker & Risen, supra note 4.
152 See Bonafede, supra note 64, at 194 n.219.
153 See Thomas D. Grant, Defining Statehood: The Montevideo Convention and Its Discontents, 37 Colum. J. Transnat’l L. 403, 435 (1999) (noting that lack of effective control over territory does not imply loss of statehood).
154 See id.
155 See id.
156 Id. at 414.
157 Id. at 435.
158 See Nowrot & Schabacker, supra note 141, at 339.
159 Id.
160 See Putin’s Georgia Ploy, Boston Globe, Sept. 16, 2002, at A14.
161 Rice, supra note 8.
162 See Stephen Sestanovich, Putin Has His Own Candidate for Pre-Emption, N.Y. Times, Oct. 6, 2002, � 4, at 14.
163 See id.
164 See id.
165 See Travalio, supra note 119, at 173.
166 See, e.g., Afghanistan’s 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).
167 See 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).
168 See 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).
169 See Henry J. Richardson, III, “Failed States,” Self-Determination and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations, 10 Temp. Int’l & Comp. L.J. 1, 8 (1996).
170 See 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).
171 See generally Jenkins, supra note 14, at 17–21 (describing the unique nature of the al Qaeda terrorist organization).
172 See Bonafede, supra note 64, at 90.
173 See Koh, supra note 122, at 28. But cf. Richardson, supra note 169, at 8.
174 See 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.
176 See Grant, supra note 153, at 438.
177 Indeed, Somalia’s 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?, in State Failure and State Weakness in a Time of Terror, supra note 8, at 142.
178 But cf. Ruth Gordon, Saving Failed States: Sometimes a Neocolonialist Notion, Am. U. J. Int’l L. & Pol’y 903, 924 (1997) (describing proposals to “recolonize” failed states and noting the problems such proposals involve).
179 See, e.g., United Nations Dep’t of Pub. Information, The United Nations and Cambodia, 1991–1995, at 5–10 (1995).
180 See, 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”).
181 See id.
182 See id.
183 See discussion of U.N. Charter art. 2, para. 4, supra notes 127–30 and accompanying text.
184 See Bonafede, supra note 64, at 165 (discussing the Caroline case as customary international law).
185 National 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.”).
186 See Bonafede, supra note 64, at 166.
187 See id.
188 See Travalio, supra note 119, at 162.
189 See id.
190 See Bonafede, supra note 64, at 166.
191 See id.
192 See Shanker & Risen, supra note 4.
193 See 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 state’s sovereignty).
194 See id.