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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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A few interesting recommendations in that respect can be found in the report “Counting Drone Strike Deaths”, Colombia Law School, Human Rights Clinic (October 2012), http://web.law.columbia.edu/sites/default/files/microsites/human-rightsinstitute/files/COLUMBIACountingDronesFinal.pdf.

ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 13 first inauguration of Obama, things flipped in the US. As law enforcement efforts got better, they were criticised for not being “tough” enough. If there was doubt, one had to detain militarily. Military committees were created by Presidential fiat. Despite a reform of the US Justice Department and a lot of positive changes, problems regarding secrecy and transparency remained.

According to this panellist, with the war in Afghanistan winding down and al-Qaeda deteriorating, the law enforcement approach is set to re-gain its prominence.78 However, there are serious problems in the law enforcement domain, which are not solely confined to the US. One could, for example, think of charging under the material support statute. The Holder v. Humanitarian Law Project decision79 has been telling with regards to the dangers involved in using criminal law. According to the Center for Constitutional Rights, the US Supreme Court in this case ruled to criminalise speech. The Center stated that “[a]ttorneys say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted”.80 While the decision is limited, it indicated that law enforcement can sweep up the protected freedom of expression.

One panellist noted that militaries are uncomfortable with unclear legal mandates, and that there is no luxury in discussing law extensively in the practical setting of military reality. This speaker was of the opinion that in armed conflicts, the law is clear. It is based on IHL (IAC or NIAC) and all the customary law that applies. In the context of hostilities, there is no place for IHRL. It is regulated by the law of armed conflict. The speaker was also of the opinion that one should stick to these obligations under the law of armed conflict. Hence, it was advised not to start mixing laws, as the capture-rather-than-kill approach suggests,81 as it will not be helpful for the soldiers on the ground. There should be a clear division between IHL and IHRL and their application. In the opinion of this panellist, the war paradigm should continue to apply in counter-terrorism operations amounting to an armed conflict.

Another panellist noted that according to article III of the US Constitution, civilian courts should – and indeed are – the preferred option for trying terrorism suspects in the US, where the vast majority were prosecuted in civilian courts.82 However, sometimes this is not feasible, for example, when a soldier captures someone on the battlefield. Echoing the view of the previous panellist, this speaker also felt that the military are not equipped to gather evidence, nor are they available to testify in court, and so on. If suspects are going to be released because of these circumstances, then what is the point of having this trial? And the answer is not making the soldiers more like police officers – they have enough to deal with. As such military commissions can be the right answer for certain trials.

See speech of Jeh Charles Johnson, General Counsel of the U.S. Department of Defense, “The Conflict Against Al Qaeda and its Affiliates:

How Will it End?”, (2012):“In the current conflict with al Qaeda, I can offer no prediction about when this conflict will end, or whether we are, as Winston Churchill described it, near the “beginning of the end”. I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed. At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats”. Another panellist was of the opinion that the ‘rebirth’ of the law enforcement approach would have especially been true if the Benghazi attacks of 11 September 2012 had not occurred, which required a high level of organisation, coordination and sophistication. However, the Benghazi attacks showed that al Qaeda still poses a danger as a group with striking capabilities. This is, in the view of this speaker, why there is a need to continue to use the war paradigm, even if there are no major al Qaeda attacks in the coming years.

Supreme Court of the United States, Holder v. Humanitarian Law Project, Certiorari to the United States Court of Appeals for the Ninth Circuit, No. 08-1498 (21 June 2010) http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf.





Center for Constitutional Rights, “Supreme Court Ruling Criminalizes Speech in Material Support Law Case” (21 June 2010), http://ccrjustice.org/newsroom/press-releases/supreme-court-ruling-criminalizes-speech-material-support-law-case.

Cf. N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC:

Geneva, 2009, http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf, p. 82: “[W]hile operating forces can hardly be required to take additional risks for themselves or the civilian population in order to capture an armed adversary alive, it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force”.

See also K. Herodotou, “Let the Numbers do the Talking: Federal Courts Work”, Human Rights First (7 December 2012), http://www.humanrightsfirst.org/2012/07/12/let-the-numbers-do-the-talking-federal-courts-work/: “To anyone who doubts the ability of federal courts to effectively handle terrorism-related cases, know this: since September 11, there have been 494 convictions in federal court. (…) By contrast, the military commissions at Guantanamo have convicted only seven people since their inception”.

The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism 14 Nevertheless, this point was also challenged. One speaker pointed out that crimes are a problem to be dealt with by law enforcement, and armed conflict should be dealt with via hostilities. When you call the fight against terrorism a war, you make the adversaries equal, whereas they are simply criminals. This gives them advantages and favours the idea of identification – of belonging to a party – whereas they should merely be seen as individuals. This panellist did not agree that the military should not be able to apply IHRL. Even in an armed conflict, you might have to apply the law enforcement paradigm, for instance vis-à-vis protesting civilians.

Furthermore, the disadvantages of law enforcement, according to this panellist, can also be overcome within IHRL: States can derogate from IHRL in counter-terrorism situations. Interestingly, a military advisor in the audience noted that it is the military commander who can take the capture-rather-than-kill decision and that despite there not being any obligation under IHL to capture, in practice, this is frequently done for a variety of reasons. This advisor stressed that IHRL is as necessary as IHL for soldiers.

One speaker noted that Europe uses the traditional law enforcement approach when it comes to countering terrorism (with the exception of clear and specific armed conflicts such as in Afghanistan). According to this panellist, the law is not a question of choice, but based on the situation. In Europe we do not have a war so it is based on the criminal justice framework, an effective system (as is evidenced by the hundreds of prosecutions of terrorist suspects) and a sustainable and successful route which does not lead to further radicalisation.

According to this speaker, terrorist acts can be prevented by criminalising conduct before the attack occurs and there are currently also considerations to criminalise the travel of foreign fighters to participate in training camps.

7. The Way Forward: The Need for a New Framework for Counter-Terrorism?

7.1 Introduction Influenced and informed by all previous panels, this last session gave the experts a forum to reflect on the conference’s discussions and contributions in order to parse a way forward regarding future approaches to counter-terrorism.

7.2 Discussion It has been argued that terrorism brings a new kind of war that cannot fit perfectly within existing international law. This leads to the opinion that the law of war needs to be adapted to encompass this new kind of war. Are the existing jus ad bellum and jus in bello adequate to counter terrorism? Or should they be adapted to the new kind of war between states and terrorist non-state actors?83 In other words, is there a need perhaps for a new protocol to the Geneva Conventions to encapsulate the idea of a transnational armed conflict (a third category) and prescribe new rules for countering terrorism, or does the lex lata (both IHL and IHRL) sufficiently cover all potential situations in countering terrorism?

The first panellist urged to look at existing lex lata and to improve it in the sense of better means of cooperation and implementation. There is a lot of overlap between the various branches (IHL, IHRL) and one has to look into similarities and complementarities. In doing so, it is not of primary importance to look into specifics, but rather to attempt and consider what we would like to achieve internationally and multilaterally. Hence, this speaker did not think that the current framework is in need of change but that we need a better understanding of its different branches.

The second panellist noted that it is a mistake to believe that we must do something because of urgent necessities. The current interpretations and development of our legal frameworks are decisive for the future.

When one applies the law in a sober way (as lawyers do without agenda), then very reasonable results will be attained. The cry for a new law is the sign of desperation, rather than a sober analysis of what the law says and what it calls for. We need to cope with changing situations under the existing legal frameworks, which are sufficient. The speaker warned not to mess around with the law of armed conflict. Do not believe that armed conflicts belong to the past; armed conflicts will continue to exist in the future and perhaps counter-terrorism is the exception rather than a rule. It might be true that there are some grey areas, but these uncertain areas are not too big to just change what has been built up in 150 years.

See for more information C. Paulussen, “Testing the Adequacy of the International Legal Framework in Countering Terrorism: The War Paradigm”, ICCT Research Paper (August 2012), http://www.icct.nl/publications/icct-papers/testing-the-adequacy-of-the-internationallegal-framework-in-countering-terrorism-the-war-paradigm.

ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 15 Another participant agreed with this and argued that many of the problems may be a matter of fixing policy rather than law. It is important to remember the function and purpose of each different area of law – IHL is a set of rules set up to regulate armed conflict, and IHRL is set up to regulate the government and its inhabitants – while avoiding a blurring of boundaries. There are indeed a few grey areas (e.g., military detention, fair trial rights and the use of lethal force outside the realm of armed conflict) and there is room for further development and clarification here, but they do not warrant new laws. The current frameworks are sufficient.

The next panellist likewise argued that he is not in favour of rewriting the laws of armed conflict because the current legal frameworks are sufficient for the situations faced today on the ground. Nevertheless, there is a need to better understand and adjust to changing situations. This speaker noted that it should be considered how current rules are interpreted, for instance with respect to detention, the jus ad bellum, and the use of drones outside the context of an armed conflict.84 On these issues, there are simply not yet answers nor interpretations of the current legal framework that are sufficiently clear and satisfactory, or which enjoy a broad consensus. A further argument for taking a new look at our current legal setting is that there has been a growing international shift and increased discussion about the expansion or flexibility of what an armed conflict is. We should therefore rein this in before a precedent about armed conflict is established. In short: this speaker was not talking about a new agreement, but about a better interpretation of the current agreements and how the current frameworks inter-relate.

The international shift was also identified by the next speaker, who went one step further. According to this panellist, the world is witnessing the development of a distinct corpus of counter-terrorism law. Even though it seems that al-Qaeda is degrading, terrorism, in this speaker’s view, is not going to disappear in the near future.

To deal with this very unconventional threat, very unconventional responses have been used. Some modifications, for better or worse, have been sloppily drawn up. But, the panellist continued, it appears that states are learning from some of those mistakes and are adapting, which may lead to a new corpus of law.



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