Geneva (ICRC) – The International Committee of the Red Cross (ICRC) is appalled by the devastating attacks that have been perpetrated in the United States today. It expresses its heartfelt sympathy to the victims and their families at this tragic time.
The ICRC condemns in the strongest terms these acts, which have targeted people in the course of their daily lives, spreading terror and inflicting grief among the population. Such attacks negate the most basic principles of humanity.
Were the terrorist acts carried out on 11 September 2001 on the territory of the United States acts of war? Was the United States involved in an armed conflict against those who carried out these acts? Were they acts that triggered an armed conflict? From this viewpoint, is IHL applicable to these acts? Are these acts not covered by other branches of international law? Which ones? Or by domestic criminal law? Can a terrorist act constitute an armed conflict only when it causes a very large number of civilian victims, as was the case for the acts committed on 11 September (over 3,000 deaths)? Did the act of terrorism carried out against the World Trade Center in New York on 26 February 1993, which resulted in six deaths and injuries to approximately 1,000 persons, constitute an armed conflict?
Can the questions in point 1.a. be answered without knowing who the perpetrators of the acts were? What would your answers be if the perpetrators were de facto or de jure agents of a State? Of a terrorist group? Of a terrorist group supported by a State? Of a terrorist group finding itself under the effective control of a State? Under the overall control of a State? Of a terrorist group supported by a government not recognized internationally? Does the fact that these acts were launched on US soil influence your answer? Does it matter whether the authorities harbouring this terrorist group were or were not aware that it was going to carry out such acts?
Is IHL applicable to any conflict between the United States and a terrorist group, if the latter is not acting on behalf of a State? What is the definition of armed conflict? Of international armed conflict? Of non-international armed conflict? Are the acts of terrorism of 11 September covered by the law of non-international armed conflicts? And the fight of the United States against the terrorist groups?
To what extent can the United States react to these terrorist acts? Did these acts entail the applicability of Art. 51 of the UN Charter on self-defence? What happens when the perpetrators are not the agents of a State? If the State harbouring the perpetrators of these acts has been identified, can the United States pursue the perpetrators by intervening militarily in that State, on grounds of the right of self-defence? Even if the State did not have overall control over the perpetrators? What happens if the members of the organization that planned and implemented these acts are scattered throughout a large number of States all over the planet?
How would you characterize the conflict if the United States used armed force to destroy terrorist bases or camps or to kill members of a terrorist organization on the territory of a State that gave its consent to such a military intervention? If the State in question did not give its consent?
Can it be held that since 11 September 2001 the United States has been involved in a “fight against terrorism” constituting a single armed conflict within the meaning of IHL? Or rather has it been involved in a series of armed conflicts taking place wherever US forces intervene militarily? What are the consequences in terms of applicability of IHL to the various actions taken in connection with the “fight against terrorism”? Is it not rather the case that, when there are no armed hostilities, the “fight against terrorism” is a vast international police operation to which domestic and international criminal law – not IHL – are applicable?