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«Jessica Dorsey and Dr. Christophe Paulussen ICCT Research Paper April 2013 This ICCT conference report provides a detailed overview from the two-day ...»

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The Boundaries of the Battlefield: A

Critical Look at the Legal Paradigms

and Rules in Countering Terrorism

Jessica Dorsey and Dr. Christophe Paulussen

ICCT Research Paper

April 2013

This ICCT conference report provides a detailed overview from the two-day symposium entitled

The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering

Terrorism, which was convened in The Hague in January 2013. The conference covered a range of

issues that are relevant in debates about using force in counter-terrorism operations against nonstate actors. Specifically, this paper elaborates on a number of key questions raised during the conference; these relate to the temporal and geographical limitations of armed conflict, the interplay between international humanitarian law and international human rights law, as well as the use of drones, the law enforcement approach to counter-terrorism and the possible need for a new framework for countering terrorism. The authors supplement participants’ debates with detailed background information and theoretical discussions.

About the Authors Jessica Dorsey is an ICCT Research Fellow and a Researcher at the T.M.C. Asser Institute in the areas of International Humanitarian Law, International Human Rights Law and International Criminal Law. Originally from the United States, she received her J.D. in 2008 while concentrating on international and comparative law (with distinction), before completing her LL.M. (cum laude) in public international law writing her thesis on the responsibility to protect at Utrecht University School of Law in 2010. After her studies, she worked on various legal research projects as well as on a human rights initiative for the Municipality of Utrecht. In 2011, she was a junior lecturer at the Utrecht University School of Law, where she taught general international law and comparative human rights. She also teaches international humanitarian law and international criminal law during a summer field studies program with Duke University in the US. Jessica is a member of several research networks, the Editorial Assistant for the Yearbook of International Humanitarian Law, an Assistant Editor for the international law weblog Opinio Juris and is currently collaborating on a project for the United Nations Special Rapporteur on Human Rights and Counter Terrorism investigating the civilian impact of the use of drones.

Dr. Christophe Paulussen is an ICCT Research Fellow and a senior researcher international humanitarian law/international criminal law at the T.M.C. Asser Instituut, coordinator of the inter-faculty research platform ‘International Humanitarian and Criminal Law Platform’ and Research Fellow at the International Centre for Counter-Terrorism – The Hague. After a propedeuse Dutch law (cum laude), a doctoraal International and European Law (with distinction) and a research master (cum laude), he started working as a PhD candidate at the Department of European and International Public Law of Tilburg University in 2005. On 24 September 2010, Christophe defended his PhD thesis ‘Male captus bene detentus? Surrendering suspects to the International Criminal Court’. Inspiration for the subject of his PhD thesis was drawn from the (more or less homonymic) thesis of his doctoraal studies which won not only the Tilburg University Thesis Prize 2004 but also the first prize for master’s theses in the framework of the Max Van Der Stoel Human Rights Award 2004. On 9 December 2011, Christophe’s PhD received an honorable mention from the jury of the Max van der Stoel Human Rights Award.

After his PhD defence, and before moving to The Hague, Christophe worked as an assistant professor at Tilburg University.

About ICCT - The Hague The International Centre for Counter-Terrorism (ICCT) – The Hague is an independent knowledge centre that focuses on information creation, collation and dissemination pertaining to the preventative and international legal aspects of counter-terrorism. The core of ICCT’s work centres on such themes as de- and counterradicalisation, human rights, impunity, the rule of law and communication in relation to counter-terrorism.

Functioning as a nucleus within the international counter-terrorism network, ICCT – The Hague endeavours to connect academics, policymakers and practitioners by providing a platform for productive collaboration, practical research, exchange of expertise and analysis of relevant scholarly findings. By connecting the knowledge of experts to the issues that policymakers are confronted with, ICCT – The Hague contributes to the strengthening of both research and policy. Consequently, avenues to new and innovative solutions are identified, which will reinforce both human rights and security.

Contact ICCT – The Hague Koningin Julianaplein 10 P.O. Box 13228 2501 EE, The Hague The Netherlands T +31 (0)70 800 9531 E info@icct.nl All papers can be downloaded free of charge at www.icct.nl Stay up to date with ICCT, follow us online on Facebook, Twitter and LinkedIn ICCT – The Hague 2013 ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 1

1. Introduction1 On 10 and 11 January 2013, the T.M.C. Asser Instituut and the International Centre for Counter-Terrorism – The Hague (ICCT), in cooperation with the International Humanitarian and Criminal Law Platform, the Konrad Adenauer Stiftung, the Municipality of The Hague and the Netherlands Ministry of Foreign Affairs organised a two-day symposium entitled The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism.

During the symposium, twenty-seven top panellists and moderators from academia, civil society, governments, the military and multilateral organisations discussed the contours of various approaches states take against non-state actors with the goal of countering terrorism. Specifically, the symposium addressed issues related to uses of force and how these may affect and define the geographic and temporal scope and limitations of the laws of armed conflict in relation to counter-terrorism. Besides this main theme, which operates within the armed conflict paradigm, the symposium also discussed and assessed the law-enforcement paradigm.

This research paper aims to highlight the main issues that were addressed during the symposium and in

doing so, will follow the titles of the six panels:

 Whenever War?: Temporal Limitations to Armed Conflict (Section 2);

 Wherever War?: Geographic Limitations to Armed Conflict (Section 3);

 International Humanitarian Law and International Human Rights Law: Menu à la Carte? (Section 4);

 A Case Study on Targeted Killings and Drones (Section 5);

 Law Enforcement Approach in Counter-Terrorism (Section 6); and finally  The Way Forward: The Need for a New Framework for Counter-Terrorism? (Section 7).2 A conclusion will be provided with a very brief summary of the symposium, including the areas that are in need of further research (Section 8). This specific paper does not allow for a comprehensive summary of all the different matters that were discussed during these two days,3 but it addresses a selection of a few important questions raised and conclusions reached, including relevant background information.

During the symposium, one participant remarked that the relevance of such conferences was that they help to interpret the law and demonstrate just how far it can be stretched. Indeed, in the words of Professor Terry Gill, the keynote speaker of the first day: “If the legal community does not come up with some kind of consensus, then I am afraid that policymakers will use what they find most expedient. As lawyers we have a responsibility or we run the risk of becoming irrelevant”.

2. Whenever War?: Temporal Limitations to Armed Conflict

1.1. Introduction The first panel was designed to address issues surrounding the temporal limitations to armed conflict, exploring the moments at which an armed conflict begins and ends, especially with respect to cross-boundary conflicts between state and non-state actors, the main focus of the symposium. Three main issues were explored in this panel: 1) the concept of “naked” self-defence and the jus ad bellum considerations in counter-terrorism, 2) the evolving concept of “imminence” with respect to self-defence, and 3) temporal considerations of armed conflict.

1.2. Discussion The first issue addressed by the panel was that of “naked” self-defence, a concept defined as “resorting to force in self-defence, but in ways in which the means and levels of force used are not part of an armed conflict, as a matter of the technical law of war. Those circumstances include self-defence uses of force against non-state actors, such as individual terrorist targets, which do not yet rise to the NIAC [non-international armed conflict] The authors would like to thank Nadia Melehi, Orla Hennessy, Eva Entenmann and Robert Weaver for their substantive help in recording (and preparing the materials for) the symposium.

See Annex 1 for the programme of the symposium and Annex 2 for the list of speakers.

The authors and T.M.C. Asser Press intend to explore opportunities to publish a more comprehensive record of the symposium.

The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism 2 threshold”.4 In March 2010, US State Department legal adviser Harold Koh endorsed this notion when he stated that the legal standards of necessity, distinction and proportionality apply in this resort to self-defence.5 Anderson says Koh arrived at this via customary international law rather than from obligations stemming directly from the technical laws of armed conflict.6 This particular notion of “naked” self-defence has been met with criticism, both outside the symposium7 as well as during the panel discussion. For example, the point was raised that such a concept or interpretation of self-defence would be a misreading of international law and that the use of the self-defence paradigm does not mean that international humanitarian law (IHL) or international human rights law (IHRL) frameworks can be escaped. When state consent is questionable (e.g., Pakistan’s consent to drone strikes, where consent is not clear), self-defence might permit going past article 2(4) of the UN Charter; however, it would not justify a disregard for IHL and IHRL – these frameworks remain applicable with their corresponding provisions (e.g., threshold for armed conflict and imminence). Additionally, this particular notion or interpretation of self-defence as the US purports to use, raised important questions regarding the roles and obligations of non-state actors, problems with state sovereignty, and the role of human rights within the armed conflict context as well as outside of it. One, perhaps controversial, remark was that the US may have felt as though it needed to use the law of armed conflict paradigm after 9/11 in order to detain and kill people who were not related to a conflict, and therefore the “war on al Qaeda” framework was implemented and complemented by this idea of “naked” selfdefence in order to fulfil policy goals. This recalls Terry Gill’s opening remarks of the symposium regarding his fear that without a legal consensus, policymakers would act out of expediency.

One panellist expressed regret that concepts specifically related to jus ad bellum were continually being mixed with those under jus in bello, while the two paradigms are meant to be kept separate. In his view, that mixture convolutes the discussion.8 He opined that “naked” self-defence was purely theoretical – to really get to the crux of the matter, one must look at the facts on the ground to see whether IHL applies (i.e., whether there is an armed conflict).

Another issue is that regarding whether force can be used against terrorist suspects in anticipatory or preemptive self-defence before an armed attack has taken place; and, in the case of pre-emptive self-defence, even as a response to a persistent threat under which it is unclear when the attack will precisely take place but is unlikely to take place imminently.9 Under the Caroline doctrine, anticipatory self-defence is recognised but limited to those cases in which an armed attack is imminent.10 This is the case when “the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation”. This is the standard of imminence traditionally accepted in customary international law.

However, John Brennan, then Assistant to the US President for Homeland Security and CounterTerrorism, has argued that there is increasing recognition by the international community that, when fighting appropriate.11 terrorism, a more flexible understanding of “imminence” is K. Anderson, How We Came To Debate a Legal Geography of War, SSRN paper (2010), p. 8.

H. Koh, Annual Meeting of the American Society of International Law Speech (25 March 2010), http://www.state.gov/s/l/releases/remarks/139119.htm.

K. Anderson, How We Came To Debate a Legal Geography of War (2010), p. 8.

Marko Milanovic, Drones and Targeted Killings: Can Self-Defence Preclude Their Wrongfulness? (10 January 2010), http://www.ejiltalk.org/drones-and-targeted-killings-can-self-defense-preclude-their-wrongfulness/; M. Milanovic, More on Drones, SelfDefense, and the Alston Report on Targeted Killings (5 June 2010), http://www.ejiltalk.org/more-on-drones-self-defense-and-the-alstonreport-on-targeted-killings/.

See also Laurie Blank, “A New Twist on an Old Story: Lawfare and the Mixing of Proportionalities”, Case Western Reserve Journal of International Law 43, no. 3 (2011); Geoffrey S. Corn, “Self-Defense Targeting: Blurring the Line between Jus ad Bellum and the Jus in Bello”, International Law Studies 88 (2012), pp. 57-92; and Keiichiro Okimoto, The Distinction and Relationship between Jus Ad Bellum and Jus In Bello (Oxford: Hart Publishing, 2011).

Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Study on Targeted Killings, A/HRC/14/24/Add.6 (28 May 2010), para. 45.

Christopher Greenwood, “The Caroline”, Max Planck Encyclopaedia of Public International Law (Last updated April 2009), para. 7, http://www.mpepil.com/subscriber_article?script=yes&id=/epil/entries/law9780199231690e261&recno=1&searchType=Quick&query=Car oline (subscription required).

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