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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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In this context, an interesting observation was made from the audience, namely, that any new framework for addressing terrorism may be difficult given that the international community cannot even agree on a definition of terrorism.85 Nevertheless, it was also noted that the lack of a definition of terrorism should perhaps not be over-exaggerated; even without an internationally agreed definition, the international community has been able to conclude 13 sectoral conventions on terrorist-related activities.

The final speaker concluded that existing bodies of law are adequate. According to this panellist, it is not correct to say that many countries accept new modifications to the existing frameworks, to the contrary. There is currently no sufficient state practice to suggest that a new paradigm has emerged. What is important though is to establish more clearly which countries are using these new measures.

The moderator of this final panel summarised the current debate saying that there are several positions supporting the idea that the current legal frameworks are adequate, but that there is also the view that (customary) law is perhaps developing in a certain direction. In the latter instance, it was noted, it has to be ascertained in what direction this will continue to develop and which the influential states are in shaping this shift. While these two basic positions may seem different, the dichotomy is not overly strong since law is never fixed but ever evolving. With this in mind, there is clearly a need for more clarity on this issue, and these shifts and developments should be closely monitored.

8. Conclusion This two-day symposium covered a range of issues that continue to be important in the on-going debate about using force in counter-terrorism operations against non-state actors.

Cf. A. Bianchi and Y. Naqvi, International Humanitarian Law and Terrorism, Hart Publishing: Oxford and Portland, Oregon 2011, p. 380, writing about the targeting of suspected terrorists by CIA‐operated drones: “The problem (…) does not seem to lie in the rules on proportionality or distinction as such, but rather in the way they are being applied or, as in the case of the drone attacks, in the issue whether IHL rules or international human rights standards should apply to certain factual situations. Therefore, even though there is no apparent need for the law to be revised, further clarification of how to properly apply these principles in complex contexts would appear to be an area of fruitful development”.

See for more information C. Paulussen, “Impunity for international terrorists? Key legal questions and practical considerations”, ICCT Research Paper (April 2012), http://www.icct.nl/download/file/ICCT‐Paulussen‐Impunity‐April‐2012.pdf.

The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism 16 The first day looked at the geographic and temporal scope of armed conflict along with the interplay of international humanitarian law and international human rights law. As outlined above, though much progress was made through the panels and discussion, we were able to identify three main areas that still need attention. The first is the definition of armed conflict as a legal concept. Though it may seem strange that such a common term as armed conflict is not precisely defined in international treaty law, that is the case. A definition with respect to non-international armed conflict has been used by the ICTY (from its Tadic judgement86) but controversy still remains about the precise requirements for “protracted” violence as well as the level of organisation of the armed groups required. Another area that would benefit from additional research is the effect of consent on uses of force against non-state actors. Section 3.2. above outlines some of the particular issues, one of which questions what precisely constitutes consent from a state and at what point might it be adjudged that a previously given consent no longer exists. These issues may become more and more relevant as conflicts with non-state actors working from territories of states without a clear and centralised government (i.e., Somalia) increase. The final issue from the symposium’s first day that deserves further research is the need for a clearer understanding of the role for IHRL in armed conflict and the interplay of IHRL and IHL in counter-terrorism operations.

The second day’s panels, exploring drones, targeted killings, the law enforcement paradigm in countering terrorism and forging a way forward also identified three main areas that would benefit from further research and analysis: First of all, it was often heard that controversial weapon systems such as drones are not necessarily problematic, but that in many situations in which they are used, there might not even be an armed conflict situation in the first place. Hence, what is important is to get more clarity on the basic starting point, meaning on the question when (temporal boundaries) and where (geographical boundaries) one can qualify a certain factual situation on the ground as an armed conflict. It was also reiterated that more research is needed on the interplay between IHL and IHRL, again a point that was already alluded to during the first day of the symposium. Finally, and regarding one of the most important questions – 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? – two views were identified: The first was that the current legal frameworks are sufficient (even though it might be useful to get more clarity on how the current rules are interpreted and applied to new situations, for instance with respect to detention, the jus ad bellum and the use of drones outside the context of an armed conflict). The second was that (customary) law is perhaps already developing in a certain direction and that, if this is indeed the case, it is time to examine in what direction this will continue to develop and which the influential states are in shaping this shift.

Echoing the statement made at the beginning of the symposium, it should be reiterated that if the legal community does not want policy makers to provide the answers regarding these pertinent questions, it must come up with answers itself to guide the policy. This symposium aimed at constituting a new step in that important direction.

ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A (2 October 1995), para.70, which, in pertinent part states: "whenever there is […] protracted armed violence between governmental authorities and organised armed groups or between such groups within a State".

ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 17 Annex 1: Programme Symposium

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Day 2: Friday 11 January, 2013 Based on A. Dworkin, Beyond the “War on Terror”: Towards a New Transatlantic Framework for Counter-terrorism, European Council on foreign Relations Policy Brief, May 2009, available at: http://ecfr.eu/content/entry/counter_terrorism_eu_us_dworkin/ (last accessed on 24 July 2012).

ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 19 Annex 2: Speakers Symposium William C. Banks, Board of Advisors Distinguished Professor of Law; Professor of Public Administration and International Affairs; Director, Institute of National Security and Counter Terrorism, Syracuse University Laurie Blank, Professor Emory Law School, Director IHL Center at Emory University Theo van Boven, Professor Emeritus of International Law, Maastricht University

–  –  –

Jessica Dorsey, Researcher, TMC Asser Instituut, PhD candidate University of Amsterdam Paul Ducheine, Associate Professor of Cyber Operations, Dutch Defence Academy; Legal Advisor to the Netherlands Army Legal Service Anthony Dworkin, Senior Policy Fellow at European Council on Foreign Relations, executive director Crimes of War Project, member Terrorism/Counter-Terrorism Advisory committee of Human Rights Watch Dieter Fleck, Editor Handbook of IHL, co-editor of The Handbook of the International Law of Military Operations;

formerly with the German Defence Ministry.

Terry Gill, Professor of International Law, University of Amsterdam; Military Professor, Netherlands Defence Academy; Associate Professor, Utrecht University Wolff Heintschel von Heinegg, Stockton Professor of Law, US Naval War College, Professor Public International Law, European University Viadrina, Frankfurt Robert Heinsch, Assistant Professor, Grotius Centre for international Legal Studies, Leiden University Christiane Höhn, Advisor to the EU Counter-Terrorism Coordinator Gilles de Kerchove, EU Counter-Terrorism Coordinator Jann Kleffner, Head of International Law Centre and Associate Professor of International Law, Swedish National Defence College; Assistant Professor of Law, University of Amsterdam Michael W. Lewis, Professor of Law, Ohio Northern University Claude Pettit College of Law Liesbeth Lijnzaad, Extraordinary Professor Maastricht University, Legal Advisor Dutch Ministry of Foreign Affairs Noam Lubell, Reader in the School of Law, University of Essex Peter Margulies, Professor of Law, Roger Williams University School of Law Joanne Mariner, Human Rights Program Director, Hunter College CUNY; recently appointed as Senior Crisis Response Advisor, Amnesty International (from 1 February 2013) Marko Milanovic, Lecturer in Law, University of Nottingham School of Law Andre Nollkaemper, Professor of Public International Law and Vice Dean for Research at the Faculty of Law, University of Amsterdam; External Advisor to the Dutch Minister of Foreign Affairs and Vice President of the Board of European Society of International Law The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism 20 Christophe Paulussen, Senior Researcher International Humanitarian Law and International Criminal Law, T.M.C.

Asser Instituut; Coordinator of the International Humanitarian and Criminal Law Platform and Research Fellow at the International Centre for Counter-Terrorism—The Hague Jelena Pejic, Legal Advisor at the ICRC Legal Division, Geneva Tom Ruys, Attorney at the Brussels Bar (Stibbe, PG European and Competition Law), Senior member of the Leuven Centre for Global Governance Studies and lecturer in Public International Law Marco Sassòli, Professor of International Law and Director of the Department of International Law and International Organization, University of Geneva; Chairman of the Board of Geneva Call William A. Schabas, Professor of International Law, Middlesex University (London); Professor of International Humanitarian Law and Human Rights, Leiden University; Emeritus Professor of Human Rights, National University of Ireland Galway; Honorary Chairman, Irish Centre for Human Rights Nico Schrijver, Professor of International Law, Leiden University Hina Shamsi, Director ACLU National Security Project

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Bibliography Alston, P. “The CIA and Targeted Killings Beyond Borders”, New York University Working Paper Series, 2011.

Anderson, K. 'Efficiency' Jus in Bello and 'Efficiency' Jus Ad Bellum in the Practice of Targeted Killing through Drone Warfare?.

SSRN Papers: 2011.

Anderson, K. Targeted Killing and Drone Warfare: How we Came to Debate Whether there is a ‘Legal Geography of War’.

Washington College Law Research Paper, no. 2011-16 (2011).

Anderson, K. Targeted Killing in US Counter-terrorism Strategy and Law, Brookings Institution, 2009.

Aoláin, F. N. “The No-Gaps Approach to Parallel Application in the Context of the War on Terror”. Israel Law Review 40, no.

563 (2007).

Bachmann, S. D., and U. Hauessler. “Targeted Killing as a Means of Asymmetric Warfare: A Provocative View and Invitation to Debate”. Law, Crime & History 1 (2011).

Bartels, R. “Timelines, Borderlines and Conflicts”. International Review of the Red Cross 91, no. 35 (2009).

Benvenisti, E. “The Legal Battle to Define the Law on Transnational Asymmetric Warfare”. Duke Journal of Comparative & International Law 20, no. 339 (2010).

Benvenisti, E. “Rethinking the Divide between Jus Ad Bellum and Jus in Bello in Warfare Against Nonstate Actors”. Tel Aviv University Legal Working Paper Series 107 (2009).

Blank, L. R. “A New Twist on an Old Story: Lawfare and the Mixing of Proportionalities”. Case Western Reserve Journal of International Law 43 (2011).

Blank, L. R. and B. R. Farley. “Characterizing US Operations in Pakistan: Is the United States Engaged in an Armed Conflict?”.

Fordham International Law Journal 34, no. 151 (2011).

Blank, L. R. “Defining the Battlefield in Contemporary Conflict and Counter-terrorism: Understanding the Parameters of the Zone of Combat”. Georgia Journal of International and Comparative Law 39 (2010).

Blank, L. R. and A. Guiora. “Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare”.

Harvard National Security Journal 1, 56-57 (2010).

Blum G. and P. Heymann. “Law and Policy of Targeted Killing”. Harvard National Security Journal 1, no. 145 (2010).

Blum G. “On a Differential Law of War”. Harvard International Law Journal 52, no. 1 (2010).

Blum G. “Re-Envisaging the International Law of Internal Armed Conflict: A Reply to Sandesh Sivakumaran”. European Journal of International Law 22, no. 265 (2011).

Brooks, R. E. “War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror”. University of Pennsylvania Law Review 153, no. 675 (2004).

Cerone, J. “Jurisdiction and Power: The Intersection of Human Rights Law and the Law of Non-International Armed Conflict in an Extraterritorial Context”. Israel Law Review 40, no. 396 (2007).

Chesney, R. “Who may be Killed? Anwar Al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force”.

Yearbook Of International Humanitarian Law, Forthcoming, University of Texas Law, Public Law Research Paper no.

189 (2011).

Corn, G. “Hamdan, Lebanon and the Regulation of Hostilities: The Need To Recognise a Hybrid Category of Armed Conflict”.

Vanderbilt Journal of Transnational Law 40, no. 295 (2007).

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