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E-grāmata: Terrorism and the State: Rethinking the Rules of State Responsibility [Hart e-books]

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Winner of the 2007 Paul Guggenheim Prize! Today's terrorists possess unprecedented power, but the State still plays a crucial role in the success or failure of their plans. Terrorists count on governmental inaction, toleration or support. And citizens look to the State to protect them from the dangers that these terrorists pose. But the rules of international law that regulate State responsibility for preventing terrorism were crafted for a different age. They are open to abuse and poorly suited to hold States accountable for sponsoring or tolerating contemporary terrorist activity. It is time that these rules were reconceived. Tal Becker's incisive and ground-breaking book analyses the law of State responsibility for non-State violence and examines its relevance in a world coming to terms with the threat of catastrophic terrorism. The book sets out the legal duties of States to prevent, and abstain from supporting, terrorist activity and explores how to maximise State compliance with these obligations. Drawing on a wealth of precedents and legal sources, the book offers an innovative approach to regulating State responsibility for terrorism, inspired by the principles and philosophy of causation. In so doing, it presents a new conceptual and legal framework for dealing with the complex interactions between State and non-State actors that make terrorism possible, and offers a way to harness international law to enhance human security in a post-9/11 world.

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Winner of Guggenheim Book Prize 2007 (UK).
Acknowledgements vii
1. Introduction
1
1.1 Terrorism and the State
1(2)
1.2 The Law of State Responsibility for Private Acts
3(2)
1.3 The Challenge of September 11th
5(1)
1.4 Overview of Research
6(5)
Part I: State Responsibility for Private Acts: Theory and Practice
2. State Responsibility for Private Acts: The Evolution of a Doctrine
11(32)
2.1 Introduction
11(1)
2.2 The Origin of State Responsibility and the General Principle of Non-Attribution of Private Acts
12(1)
2.3 The Doctrine of Collective Responsibility
13(1)
2.4 The Theory of Complicity
14(3)
2.5 The Janes Case
17(2)
2.6 The Condonation Theory and the Calculation of Damage
19(5)
2.7 The Separate Delict Theory
24(1)
2.7.1 Introduction
24(1)
2.7.2 Arbitral Awards
24(1)
2.7.3 Codification Efforts
27(1)
2.7.4 State Practice
32(1)
2.7.5 Publicists
36(2)
2.8 The Presentation of the Separate Delict Theory to the ILC
38(4)
2.9 Conclusion
42(1)
3. The Agency Paradigm: The Principle of Non-Attribution and its Exceptions
43(40)
3.1 The Principle of Non-Attribution of Private Acts and the Separate Delict Theory: The ILC Text and the Claim of Universal Application.
43(3)
3.2 Recent Applications of the Separate Delict Theory
46(1)
3.2.1 Injury to Aliens and the Iran-US Claims Tribunal
46(1)
3.2.2 Human Rights
50(1)
3.2.3 International Environmental Law
57(1)
3.2.4 Other Legal Obligations to Regulate Non-State Conduct
62(1)
3.2.5 Observations
65(1)
3.3 The Exceptions
66(1)
3.3.1 Attribution of Conduct of De Facto State Agents
66(1)
3.3.2 Attribution of Conduct Adopted by the State
72(1)
3.3.3 Attribution of Conduct of Agents of Necessity and Insurrectional Movements
75(3)
3.4 Conclusion
78(5)
Part II State Responsibility for Private Acts of Terrorism: Conventional Perspectives
4. To Prevent and to Abstain: International Obligations of States with Respect to Terrorism
83(72)
4.1 Introduction
83(1)
4.2 Towards a Definition of Terrorism
84(1)
4.2.1 Recent Developments in the Definition of Terrorism
86(1)
4.2.2 The Search for a Definition Before 9/11
89(1)
4.2.3 Changes in the Attitude towards Terrorism at the United Nations
95(1)
4.2.4 The Draft Comprehensive Convention and the Search for a Legal Definition after 9/11
99(1)
4.2.5 The Emerging Consensus?
110(1)
4.2.6 A Working Definition of Terrorism
116(2)
4.3 Counter-Terrorism Obligations of the State:
118(1)
4.3.1 Counter-Terrorism Obligations before 9/11
118(1)
4.3.2 Legal Developments Following 9/11: Resolution 1373 and the CTC
122(1)
4.3.3 Re-Conceptualizing the Duty: Expectation and Reality
130(1)
4.4 The Standard of Care and the Burden of Proof: Determining State Responsibility for Violations of Counter-Terrorism Obligations
131(1)
4.4.1 General Observations
131(1)
4.4.2 The Role of Knowledge
133(1)
4.4.3 The Role of Fault
136(1)
4.4.4 Due Diligence, Capacity and the Problem of the Failing State
140(1)
4.4.5 The Burden of Proof
146(1)
4.4.6 Assessing Violations of Counter-Terrorism Obligations The Duty to Prevent and to Abstain
151(1)
4.5 Conclusion
152(3)
5. State Responsibility for Private Acts of Terrorism
155(56)
5.1 A Distinction with a Difference
155(1)
5.1.1 The Heuristic Dimension: A Preview
155(1)
5.1.2 The Role of the State
156(1)
5.1.3 Political Accountability
157(1)
5.1.4 Forcible Responses to Private Acts of Terrorism
158(1)
5.1.5 Application of the Laws of Armed Conflict
165(1)
5.1.6 Damages
167(2)
5.2 State Resonsibility for Private Acts of Terrorism before September 11: Three Theories
169(1)
5.2.1 Terrorism and the Agency Paradigm
170(1)
5.2.2 Absolute Responsibility
173(1)
5.2.3 A Return to the Theory of Complicity
174(2)
5.3 Use of Force as Lex Specialis
176(9)
5.4 State Practice before September 11th
185(1)
5.4.1 Looking at State Practice
185(1)
5.4.2 State Responses to Terrorism: A Survey
186(1)
5.4.3 An Analysis of State Practice
206(3)
5.5 Conclusion
209(2)
6. The Challenge of September 11th and the Academic Response
211(28)
6.1 September 11th and the International Reaction
211(8)
6.2 The Academic Response
219(1)
6.2.1 The Agency Paradigm and the Illegality of Operation Enduring Freedom
219(1)
6.2.2 The Agency Paradigm and the Legality of Operation Enduring Freedom
222(1)
6.2.3 Use of Force Rules as a Justification
227(1)
6.2.4 Other Possible Justifications for Operation Enduring Freedom
229(1)
6.2.5 A New Rule
231(7)
6.3 Conclusion: The Dissonance between Theory and Practice
238(1)
7. Inadequacies of Existing Approaches to State Responsibility for Terrorism
239(46)
7.1 Introduction
239(1)
7.2 Contemporary Forms of State Involvement in Terrorism
240(1)
7.2.1 Forms and Degrees of State Involvement in Terrorism
240(1)
7.2.2 The Changing Nature of the Terrorist Threat
249(8)
7.3 The Inadequacies of the Agency Paradigm
257(1)
7.3.1 Conceptual, Policy and Evidentiary Problems
257(1)
7.3.2 From Injury to Aliens to Terrorism: Questioning the Universal Application of ILC Principles
261(1)
7.3.3 The Nicaragua Problem: Weaknesses with the Standard Case Law Analogies
266(2)
7.4 The Inadequacies of Use of Force Standards
268(1)
7.5 The Inadequacies of Absolute or Strict Responsibility
269(3)
7.6 Towards a Model of State Responsibility for Terrorism: The Inter-penetration of the Public and Private Sphere
272(1)
7.6.1 The Public/Private Distinction and the Role of the State in the Private Sphere
273(1)
7.6.2 The Crime/War Distinction and the Role of the Non-State Actor in the Public Sphere
277(1)
7.6.3 Towards a Model of State Responsibility for Terrorism: Complicity and Causation
280(1)
7.7 Conclusion
281(4)
Part III: State Responsibility for Terrorism: A Causal Analysis
8. Causation-based Responsibility
285(46)
8.1 Introduction: Agency and Causation
285(2)
8.2 A Word about Private Law Analogies
287(2)
8.3 Common Sense Causation: Some Basic Principles
289(1)
8.3.1 Methodology
289(1)
8.3.2 Beyond the 'But For' Test
291(1)
8.3.3 The Essence of Common Sense Causation
293(1)
8.3.4 Omissions
294(1)
8.3.5 Occasioning Harm and the 'Problem' of the Intervening Actor
297(1)
8.3.6 Causation and Responsibility
303(3)
8.4 Echoes of Causation-based Responsibility in International Law
306(1)
8.4.1 Understanding the Relationship between Attribution, Causation and State Responsibility
306(1)
8.4.2 Causation-based State Responsibility in International Law
308(1)
8.4.3 Causation-based Responsibility and the Separate Delict Theory
322(7)
8.5 Conclusion
329(2)
9. Causation-based State Responsibility for Terrorism
331(30)
9.1 Introduction
331(1)
9.2 A Causal Model of State Responsibility for Terrorism:
332(1)
9.2.1 The Role of Attribution
332(1)
9.2.2 The Role of Illegality
333(1)
9.2.3 The Role of Causation
333(1)
9.2.4 The Role of Non-causal Considerations
336(4)
9.3 Returning to the Problem of Burden of Proof
340(8)
9.4 Testing the Practical Viability of a Causal Model
348(1)
9.4.1 Explaining the Response to September 11th
348(1)
9.4.2 More Problematic Factual Scenarios Applying a Four-step Process
351(6)
9.5 Conclusion: The Policy Benefits of a Causal Model and its Status under International Law
357(4)
10. Concluding Observations
361(4)
Select Bibliography 365(20)
Index 385
Dr Tal Becker was legal counsel to the Permanent Mission of Israel to the United Nations from 2001-2005 and has served as Vice-Chairman of the Legal Committee of the UN General Assembly. Dr Becker received his doctorate from Columbia University, and holds a masters degree from the Hebrew University. He lives in Jerusalem with his wife, Naomi, and their three children.
Permanent link: https://www.kriso.lv/db/9781847310156_pe.html
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