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Product Details
| ISBN-13: | 9781107014503 |
|---|---|
| Publisher: | Cambridge University Press |
| Publication date: | 04/09/2015 |
| Edition description: | 2nd ed. |
| Pages: | 1070 |
| Product dimensions: | 5.91(w) x 9.02(h) x 2.28(d) |
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Cambridge University Press
0521838509 - The 'War on Terror' and the Framework of International Law - by Helen Duffy
Excerpt
1
Introduction
1.1 Preliminary remarks
The atrocities committed on 11 September 2001 ('September 11' or '9/11'), like others since then, highlight the critical importance of the international rule of law and the terrible consequences of its disregard.1 Ultimately, however, the impact of such attacks on the international system of law depends on the responses to them and in turn on the reaction to those responses. To the extent that lawlessness is met with unlawfulness, unlawfulness with impunity, the long-term implications for the rule of law, and the peace, stability and justice it serves, will be grave. Undermining the authority of law can only lay the foundation for future violations, whether by terrorists or by states committing abuses in the name of counter-terrorism.
This book seeks to set out in an accessible fashion the parameters of the international legal framework applicable to the events of 11 September 2001 and responses thereto. It highlights questions regarding the extent to which the norms and mechanisms of the international legal system have been upheld or undermined in the so-called 'war on terror' waged since 9/11.2 The premise is that the legitimacy of measures taken in the name of the counter terrorist struggle depends on their consistency with international law. It is essentially this reference to objectively verifiable standards and processes - rather than subjective assertions as to good and evil3 - that enable credible distinctions to be drawn between those that abide by the rules of the international community and those, like the architects of 9/11, that conspire against them.
Terror attacks such as those executed in the United States, Bali, Istanbul and Madrid in recent years render beyond doubt the challenge facing the international community to address effectively the scourge of international terrorism. They also present countless challenges for international scholars and practitioners. These include: ensuring the centrality of law, and the uncompromising governance of the principle of legality, in the highly charged debate on countering the terrorist threat; advancing an understanding of the law as sufficiently clear and accessible to provide a meaningful framework for action; demonstrating that the law enables, and indeed obliges, states to take effective measures against terrorism, and is inherently responsive to the security challenges posed by international terrorism; where the law is unsettled or unclear, or mechanisms and procedures ineffective or inadequate, promoting normative clarification or reform; monitoring, and seeking accountability in respect of, violations of international law.
This book hopes to make a modest contribution to these enormous challenges. It seeks principally to address the question whether there is an identifiable framework of international law capable of addressing the September 11 attacks and the reactions they have triggered, and to counter the notion of absolute vacuums in the international legal order. It is directed towards practitioners, students and others grappling through the fog of the 'war on terror', in which international law is often notably absent, or presented as hopelessly confused or ill equipped to address 'new challenges'. It locates the September 11 attacks, not in a normative void, but against a backdrop of international law and developing international practice, and explores the multiple internal connections between the relevant areas of international law. While reflecting that in certain areas the law may indeed be unsettled, and in others it may be in flux,4 it suggests that the main challenge stems not from the inadequacy of existing legal standards but from lack of respect for them.
As the UN Secretary General has noted, the 'war on terror' affects all areas of the UN agenda,5 and this book seeks only to highlight those areas of law that are of central relevance to an understanding of the 'war on terror'. It is not an academic textbook that seeks to advance a new theory of law, nor an in depth study of the potential impact of September 11 and its responses on international law. Still less is it a comprehensive factual report on the plethora of measures taken since 9/11, or an advocacy document seeking to establish a case against any individual or government. It does not advance any agenda beyond respect for the rule of international law, as referred to above. It seeks to facilitate informed legal debate, by a broad range of participants, on specific issues of law that the 'war on terror' has thrown up, and more broadly on the role and relevance of international law in light of the global security threat that besets the start of the 21st century, in which we all have a stake.
Among the myriad questions that have arisen in the aftermath of the September 11 attacks, are the following. How should we understand the September 11 attacks: as crimes, as acts of war, as wrongs committed by a state, or as all of the above? What law governs the 'war on terror'? What is the legal significance of labelling someone a 'terrorist'? Was a state (or were states) responsible for the September 11 attacks, or for supporting or harbouring al-Qaeda, and what are the legal consequences of that? What should be, and what has been, the role of criminal law in responding to the September 11 attacks, or potentially to the responses to them? Can individuals be held to account, and if so where, and under which law? What are the obligations of states to cooperate with the criminal process, and in what circumstances should they refrain from cooperating? Was the use of force a permissible response to the September 11 attacks, and if so against whom can it lawfully be directed? What are the key legal issues arising in relation to the lawfulness of attacking Afghanistan or Iraq? Were the laws of war respected? Is the targeted assassination of individuals a lawful response? In what circumstances, and to what extent, can human rights be restricted in the name of counter terrorism? Is there really a 'legal limbo' in international law?
1.2 Some legal basics
As this book does not assume detailed prior knowledge of international law, it is worth noting some basic legal points of relevance to the framework and application chapters that follow. These relate to the 'sources' from which the legal framework derives, the process by which that framework may change over time, and the importance of understanding it, not in an atomised way, but as an interconnected whole.6
1.2.1 Sources of international law
The traditional starting point of every discussion of the sources of international law is Article 38 of the Statute of the International Court of Justice,7 which lists as 'sources' of international law: (a) international conventions; (b) customary international law; (c) general principles of law 'as recognized by civilized nations'.8 As reflected throughout the framework, treaty and custom constitute the most important of these sources.
1.2.1.1 International treaties
Most of the rules of the international legal system derive from agreements between States.9 Two fundamental rules govern international agreements. The first is that once a State is bound by a treaty, it must fulfil the obligations deriving from it in good faith,10 and may not for example 'invoke the provisions of its internal law as justification for its failure to perform a treaty'.11 The second is that only States which are parties to a treaty are bound by it, and an international agreement cannot in itself produce obligations on third States.12 For major international treaties such as those addressed in this study, states generally become bound through ratification or accession,13 but a state that has signed but not ratified a treaty 'is obliged to refrain from acts which would defeat the object and purpose of the treaty'.14
While the vast majority of treaties normally aim at exchanging rights and obligations between the parties, some multilateral treaties lay down general rules that affect all states of the international community. This category of so-called 'law-making treaties',15 which includes for example the multilateral conventions on the protection of human rights discussed at Chapter 7 or the Geneva Conventions and other multilateral treaties on international humanitarian law discussed at Chapter 6, may influence the development of customary international law in particular areas (see below). In particular, the fact that a large number of States have ratified a particular convention may constitute a strong indication that the rules embodied in that convention correspond to rules of customary international law.16
1.2.1.2 Customary law
In the absence of a legislative body with the power to create rules binding on all the subjects of the international legal system,17 the only source of 'general' rules of international law is international custom. Customary law derives from the practice of States,18 where this practice is uniform, consistent and general and considered to be legally necessary or obligatory.19 Generality of practice does not mean universality, and the fact that a number of States follow a certain course of conduct, and other States do not protest, may be sufficient to affirm the generality of the practice. The second prong of the test - the attitude to the practice as obligatory or 'necessary', referred to as opinio juris - is crucial in distinguishing State practice relevant for the purpose of identifying a customary rule from practice which denotes mere international usage.20 While some states will be more active on the international plane, thus more influential on the evolution of customary law, once a customary rule of international law has come into being, all States are bound by it.21
1.2.1.3 Subsidiary sources
Article 38 further provides that, in order to determine the content of these (treaty-based or customary) rules of international law, recourse may be had to judicial decisions and the writings of legal scholars.22 These are referred to in the book as they may provide evidence of the content of customary or treaty law.23 In practice, although there is no system of 'precedent' in the international system,24 decisions of the ICJ and other international courts and tribunals are important as they are often treated as providing authoritative interpretations of the law in question, and followed as authority in later cases. As for the legal analyses of jurists, while they do not create law as such, they may 'ease or impede the passage of new doctrines into legal rules'.25
A 'subsidiary role' in the determination of the actual content of international law may also be attributed to the corpus of resolutions of international organisations, declarations and non-binding international instruments commonly referred to as 'soft law'. While they are not binding per se, they are referred to in places in this book, as they may give more detailed expression to some of the binding prescriptions and prohibitions of international law and provide evidence of customary law.
1.2.2 How international law changes
The second point to note is that the law is not static. Every legal system needs to be able to develop its rules to take into account the evolution and changing exigencies of the society it regulates.26 The international legal system is characterised by the absence of a body entitled to create (and to modify) legal rules binding on all its subjects. But just as international law is created by States, as set out above, so is it changed by them.
While the process through which treaty-based rules of international law change is quite straightforward,27 the process relating to the modification or 'abrogation' of rules of customary international law is somewhat more complicated. Just as customary international law comes into existence when most States of the international community follow a certain course of action believing that it is required by a legal norm, so may customary rules lose their binding force, and change, where the consistent and general practice of states, and the opinio juris supporting them, ceases. In this respect, the peculiarity of the international legal system lies in the fact that 'violations of the law can lead to the formation of new law'.28 Discussion of the practice of states in responding to 9/11, and reactions to those responses, assumes particular significance in a system where departure from existing legal standards, and responses to the same, may ultimately impact on those standards.29
However, several points are worthy of emphasis in this respect. The first is that, of course, not every violation of an international rule leads to a change in the law.30 In most cases, not even consistent patterns of violations by a number of States imply that a rule has been superseded, as the 'obligatory quality' of a rule of customary law is lost only if the behaviour of those States which refuse to comply with the rule, and the reactions of other States, are supported by the belief that the rule is no longer binding.31
Second, some customary rules of international law are particularly difficult to modify. This is due to their status as peremptory norms of international law or jus cogens norms, which have been authoritatively defined as 'substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values'.32 Among the consequences of a norm having jus cogens status33 is the fact that it can be modified 'only by a subsequent norm of general international law having the same character'.34 In practice, determining that a jus cogens rule no longer exists, or that its content has changed, would require not only 'general' but 'universal' state practice, and strong evidence indicating that the value it protects is no longer considered a fundamental one by the international community. As will be seen, certain of the rules considered in this book, such as those relating to the fundamental prohibition on the use of force, basic human rights or core humanitarian law principles, have attained this status and are therefore extremely resistant to change. As rules which aim to protect values considered fundamental by the international community as a whole, jus cogens rules have the additional characteristic of creating obligations erga omnes, i.e. 'obligations owed by a State towards the international community as a whole'.35
1.2.3 The legal framework as an interconnected whole
The final point to note is that, while each of the following chapters explore a different aspect of the legal framework, they are inherently interconnected. Understanding the international system of law requires that it be seen as a whole, with each of the branches of international law understood by reference to the core principles from which they derive and to one another. These inter-connections will be highlighted throughout this book - at times requiring that the law set out in a subsequent chapter be pre-empted and at others that aspects of foregoing chapters be revisited.36
1.3 Structure of the book
This book consists of three parts. The first sketches out preliminary issues of law relating to 'international terrorism' and 'international responsibility' for terrorism. The second, more substantial, part explores the lawfulness of certain responses to acts such as 9/11, by reference to criminal law and the law governing peaceful settlement of disputes and resort to armed force. The third part considers constraints on how those responses may be executed, with chapters on human rights law, humanitarian law applicable in armed conflict and a case study on the application of both areas in the context of detainees held at Guantanamo Bay, Cuba.
While the focus is on the legal framework pertinent to the particular area of law, in Parts Two and Three37 the 'framework' A section of each chapter is followed by an 'application' B section, highlighting key issues regarding the treatment of that framework in the 'war on terror'. These sections provide examples of practice post 9/11 that illustrate certain characteristics of the 'war on terror' and its relationship to international law.38 As reflected in the emphasis on the United States, much of this practice derives from the US as the undoubted driving force behind the 'war on terror'. However, as will be illustrated, the practice of many if not most states around the globe has been affected since 9/11, directly or indirectly, whether through the adoption of new legislative or administrative measures or resort to new justifications for pre-existing practices.
While the issues highlighted in the application sections of the chapters illustrate those arising in the first few years following 9/11, the framework sections, by contrast, provide the law by which new measures may be assessed as they emerge, as they do almost daily, in the rapidly unfolding 'war on terror'.
1.4 Overview of chapters
Chapter 2, Part One addresses the question of 'terrorism' as an international legal norm. Starting from the renowned lack of a global convention defining and comprehensively prohibiting 'terrorism' as such, it sketches out international and regional developments (before and after September 11, 2001) towards a general definition of terrorism, as well as the proliferation of conventions addressing specific forms of terrorism. It questions to what extent, in the light of state practice, there might be said to be an accepted definition of terrorism under treaty or customary international law. It highlights other international legal norms that do, however, address the prohibition on terrorism and obligations in respect of it. The chapter concludes by inquiring as to the significance of the 'terrorism' label, and whether the 'war on terror' and analysis thereof is not more meaningfully framed around other, established, legal norms.
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