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The International Struggle Against Terrorism – the Law Enforcement Paradigm and the Armed Conflict Paradigm (Full Version)

The International Struggle Against Terrorism – the Law Enforcement Paradigm and the Armed Conflict Paradigm (Full Version)
Parliament Article

September 10, 2008

The fight against terrorism falls into two categories: the Law Enforcement Paradigm (the traditional, criminal struggle), and the Armed Conflict Paradigm (a more recent, military struggle). In this article, originally published in Hebrew in IDI's online journal Parliament, Prof. Yuval Shany examines these two paradigms in the context of international law and surveys the implications of choosing one method over the other.

For an abridged version of this article, click here.

Terrorism is by no means a new phenomenon, nor are the international community's legal attempts to battle it. As early as 1937, an attempt was made to draft an international convention, which would obligate the state parties thereto to combat terrorist activity and to punish those who carried out terrorist attacks (this convention never entered into force). Furthermore, since the 1960s, the UN has drafted 13 international conventions that prohibit certain terrorist activities, such as the hijacking of airplanes, hostage taking and the use of explosive devices in the context of terrorist attacks. The conventions also prohibit certain forms of involvement in terrorism, such as the financing of terrorism. Today, the UN is negotiating the ratification of a comprehensive convention that will prohibit all formss of terrorism and will combat every form of involvement in international terrorism (the current focus of these discussions is on finding a widely-acceptable legal definition of the term "terrorism"). It is important to mention that alongside these "global" conventions are regional conventions against terrorism drafted by regional organizations, such as the Arab League, the Council of Europe and the Islamic Conference.

Most of these international conventions view terrorism as a criminal phenomenon that must be dealt with using normal law enforcement methods (hereinafter: the Law Enforcement Paradigm). Some decision makers and commentators feel however, in light of the increased threat posed by terrorism and the changes in the structure and the character of terrorist organizations (e.g., a shift from terrorist groups with political goals seeking national liberation to fundamentalist groups with an almost anarchist agenda), that a new balance must be achieved between the need to uphold human rights and security considerations. Toward this end, the laws pertaining to interrogation, detention, criminal trial procedures and extra-judicial sanctions must be considerably modified to be more flexible.

A second paradigm suggests that terrorism should no longer be perceived as an essentially criminal phenomenon in view of the fact that the resources that are available to some terrorist organizations allow them to pose a threat similar to that of an attack by a hostile army (while demonstrating a very low level of self-restraint regarding the use of violence and the choice of targets). According to this point of view, the war on terror is essentially a military conflict (hereinafter: the Armed Conflict Paradigm), and, therefore, countries should occasionally be permitted to use drastic measures that are unacceptable according to the Law Enforcement Paradigm, such as the assassination of terrorists (targeted killings), lengthy administrative detention of "unlawful combatants" and military operations within the borders of a foreign country – measures that are analogous to those used against enemy forces in times of war.

This short list will examine the international legal position on states' freedom to choose one of the two paradigms mentioned above and the ramifications that this choice, as expressed in international instruments and decisions, may have on its implementation by governments and on legal discourse. This examination is based on the assumption that the international legal position actually influences the way that governments, national and international courts, public opinion, both inside and outside the country, and other relevant communities face terrorism, as well as the measures they choose to employ in the process. Therefore, political and legal support of the war on terrorism on the national and international level is largely dependant upon the legality of the measures employed.

The most common traditional stance on terrorism of the national laws of most countries and of international legislation is based on two principles:

  • Terrorism is essentially a criminal phenomenon that must be fought using the same measures employed in the war on crime—investigations, trials and incarcerations.
  • The international character of terrorism demands international cooperation, similar to the cooperation that exists in the area of other international crimes (the trafficking of human beings and drugs, organized crime, and so forth).

The recent increased stregnth of terrorist organizations has led decision makers and experts around the world to reform the traditional paradigm in order to grant national authorities stronger enforcement powers at the cost of compromising the human rights of people suspected of terrorist activity. Some of the special political considerations at the heart of the attempt to redefine the balance between individual rights and public safety include:

  • The threat posed by terrorist organizations is perceived to be unusually severe, as are the exceptionally sly and ingenious methods employed by the terrorists (which make it very difficult to "crack" terrorist networks).
  • Members of terrorist organizations are characterized by very high levels of ideological dedication (which reduces the chances of voluntary cooperation with law enforcement authorities).
  • Law enforcement agencies have limited access to the areas in which terrorist organizations operate (which makes it difficult to collect information and legal evidence).

Nevertheless, it seems that the willingness to sacrifice the human rights of suspects of terrorism on the altar of national security has to do with a perception of the terrorist as the "other", who challenges the foundations of the existing political and social order. In other words, the terrorist's status as an outlaw facilitates his or her removal from within the scope of protections provided by existing legislation.

It is possible to identify the changes in the Law Enforcement Paradigm that have already been adopted and incorporated into national criminal law in the United Kingdom, France, Spain, Canada, Australia, Israel, India and the United States:

  • The extension of detention periods of suspects of terrorism without legal proceedings.
  • Limitations on the right to legal representation for suspects of terrorism (deferring or preventing meetings between suspects and their attorneys, requiring security clearance for the suspects' attorneys).
  • Limitations on the defendants' access to material used by the prosecution and to confidential evidence; increased reliance on circumstantial evidence implicated suspects in terrorism.
  • Reliance on evidence in terrorism cases, which would be unacceptable in ordinary criminal proceedings, and recourse to the appointment of special judges or the establishment of special courts or tribunals.

Moreover, some countries have also employed preemptive measures in their war on terror:

  • Preemptive arrests (administrative detnetions or the arrest of foreign citizens on the basis of immigration regulations) or other measures aimed at restricting the movement of suspects of terrorism.
  • Special interrogation methods employed specifically against suspects of terrorism, including the application of severe physical force and psychological pressure, in situations that the authorities deem to justify such measures on the basis of the need for  neutralizing a "ticking bomb" (as in the US and Israel, for example).
  • Collective punishment, such as the destruction of homes or the deportation of terrorists' family members, in order to deter involvement in terrorism (a policy that was adopted by Israel).

Finally, it is important to note that in 1999, the UN has adopted Security Council Resolution 1267 that applies sanctions against any individual and organization involved in Taliban activities (this resolution was later amended to include Al-Qaeda as well), including the freezing of financial assets belonging to these parties. This resolution is implemented by means of a "black-list" that is compiled by a committee appointed by the Security Council, which UN member states are obliged to enforce.

How does international law respond to these measures and to the call, from time to time, to adopt additional draconian measures, such as authorizing judges to issue "torture warrants" during states of emergency? The key article adopted to deal with this issue is Article 4 of the International Convention on Civil and Political Rights (1966), which Israel ratified in 1991. According to this article, in extreme states of emergency (including during a terrorist attack), countries are permitted to deviate from their obligation to respect all human rights—therefore, the convention itself allows a country to redefine the balance between human rights and the special needs of a society in distress. Nonetheless, the ability of a state to derogate from its international obligations to protect human rights is limited: Article 4 states that the application of the restrictions must be "strictly required" (this term has been construed in legal literature and court ruling as also encompassing the requirement of proportionality), nondiscriminatory and in keeping with other relevant international norms. Moreover, some human rights are not subject to derogation, including the right to life and the ban on torture.

Recent regional and state court rulings express the need to limit attempts by states to redefine the balance between upholding human rights and fighting terrorism in light of the limitations previously mentioned, for example:

  • In the A vs. Secretary of State Case (the Belmarsh Prison Case, 2004), the British House of Lords decided that the indefinite detention of foreigners suspected of terrorism without trial is disproportionate and discriminatory; alternative restrictions set by UK authorities against suspects of terrorism, such as issuance of "control orders" that severely restrict their movement, were also declared disproportionate by the House of Lords primarily because they were based on flawed legal proceedings, and in particular, on confidential evidence (MB vs. Secretary of State, 2007; Secretary of State vs. JJ, 2007).
  • In the Charkaoui Case, 2007, the Canadian Supreme Court ruled that legal proceedings, which allow prolonged detention periods of terror suspects  based on confidential evidence and without effective judiciary review, lead to disproportionate violations of the suspects' right to liberty.
  • The US Supreme Court ruled in the Boumediene Case, 2008, that denying the terror suspects detained at Guantanamo proper legal proceedings (especially by limiting their right to appeal the decision to label them "unlawful combatants", which effectively means the possibility of indefinite detention without trial), is disproportionate and illegal. This ruling was preceded by the American Supreme Court's decision in the Hamdan Case in 2006 that invalidated a series of legal provisions relating to Military Commission trilase because they severely infringed on the suspects' rights.
  • At the beginning of 2008, the Advocate General, who advises  the European Court of Justice (the European Union's Supreme Court), published an opinion that the sanctions, which were imposed on individuals and organizations suspected of involvement terrorism by the EU following the publication of the "black list" by the UN Security Council, are illegal. According to the Advocate General, harming an individual's property, without granting the person the right to submit a plea or other effective legal aid, clashes with the European Union's fundamental principles (Kadi, 2008). This decision also expresses the importance of fair and proper legal proceedings, even during states of emergency (this opinion was formally embraced by the court in September 2008).

Similar trends have characterized Israel's Supreme Court:

  • In 2000, the court ruled that the holding of individuals in administrative detntion as "bargaining chips" for negotiations with the terrorist organizations to which they belong is a disproportionate violation of their right to liberty and, therefore, is illegal (HCJ 7048/97, Anonymous).
  • In 2003, the court ruled that the detention of suspected terrorists for extended periods of time without legal supervision is unjustified (Supreme Court HCJ 3239/02, Marab).
  • Israel's Supreme Court prohibited the torture of terror suspects (Supreme Court 5100/94, The Public Committee against Torture in Israel), thus expressing the unequivocal illegality of torture even during states of emergency (The House of Lords recently excluded the admissibility of evidence that was obtained through torture—A vs. Secretary of State, 2005).
  • In the Supreme Court case HCJ 7015/02, Ajouri, the court ruled that according to the Fourth Geneva Convention, the expulsion of terrorists' families from the West Bank to Gaza is, in fact, illegal (unless the army is able to prove that the family members pose a direct threat to security in the area). This ruling expresses Israel's commitment to other relevant international conventions when taking measures that violate human rights.

These court rulings may be viewed as the legislative branch's reaction to the attempts of other government authorities to bring about a dramatic change in the existing balance between upholding human rights and the society's security needs. These rulings also demonstrate how human rights laws can limit the state's actions and prevent it from adopting extreme measures that undermine basic legal principles during its war on terror (due process, individual responsibility, violation of rights only in the case of clear and present danger, proportionality, etc.).

It is against this background in which human rights laws establish a long list of substantive and procedural limitations on the government's ability to fight terrorism that one questions whether these laws are indeed an appropriate and effective framework to confront the threat of terrorism—especially international terrorism, which is led by quasi-military terrorist organizations that have the ability to inflict as much damage as an attacking army. Indeed, Israel defined its own conflict with the Palestinians during the Second Intifada (which broke out in 2000) as an "armed conflict short of war". The US and some of its allies declared a "global war on terror" against Al-Qaeda following the attacks of September 11th, 2001. Essentially, these declarations represent a paradigmatic change—from the Law Enforcement Paradigm to the Armed Conflict Paradigm.

Viewing the war on terror as an armed conflict may have some important practical implications. First, individuals that take part in terrorist activities may be considered legitimate military targets and may be killed without trial, even when they do not pose an immediate threat to human lives (HCJ 769/02, The Public Committee against Torture in Israel. It is important to note that the US also resorted to "targeted killings" in Yemen, Pakistan, and Somalia).

Second, Israel and the US adopted legislation that views terrorists as unlawful combatants and, under certain circumstances, permits their detention until the conclusion of the hostilities (The Unlawful Combatant Detention Law, 2002; Detainee Treatment Act, 2005).

Finally, under certain circumstances, governments may take military action against terrorist organizations and operatives even when the targets are located in another country (NATO's actions in Afghanistan and the IDF's actions in southern Lebanon are examples of the implementation of this notion).

Unlike in the past, when most countries tended to deny involvement in armed conflict with a terrorist or guerilla organization in order to avoid the restrictions of international humanitarian law (also referred to as the laws of war ), today, some countries on the front in the war against terrorism tend to define it as an armed conflict, which calls for military actions similar to those that are used against an enemy army. The advantage of this approach, as far as the governments are concerned, is that it broadens the range of measures at their disposal and seems to allow them to evade the more stringent Law Enforcement Paradigm. Nonetheless, the question that arises is whether the Armed Conflict Paradigm and the actions it authorizes are compatible with international law.

A preliminary issue that must be examined in this context is the circumstances, if any, under which a state has the right to resort to the Armed Conflict Paradigm in order to take action against a terrorist organization. This is a very complex issue to resolve primarily because of, among other things, the difficulty of assigning the war on terror to either of the two main categories defined by international humanitarian law: international armed conflicts as opposed to non-international armed conflicts. Whereas the first category was initially aimed at settling conflicts between states (in which case, any violence between states is subject to a long list of humanitarian rules), the second category was initially aimed at settling conflicts within a state, between the government and an organization that has challenged it (in which case, if the conflict is characterized by widespread violence, the opposing sides of the conflict will be subject to several fundamental humanitarian rules).

Nevertheless, it seems that regardless of the classification of the war on terror in accordance with international humanitarian law, nations have the right to adopt the Armed Conflict Paradigm only in response to extremely severe terrorist attacks against them:

  • The International Court of Justice in The Hague ruled in the Nicaragua Case (1986) and in the Oil Platform Case (2003) that a nation's right to self-defense permits military action against another state only if the initial armed attack against it had severe consequences, and, apparently, this assessment should also apply when the terrorist organization responsible for the armed attack is operating out of another country.
  • The International Criminal Tribunal for the Former Yugoslavia ruled in the Haradinaj Case (2008) that international humanitarian law applies to non-international conflicts (which could include terrorist attacks) only when the level of violence of the conflicts is very high (reflected in the level of organization of the opposing sides, the weapons used, the numbers of victims, the length of the conflict, etc.).

Therefore, it seems that contemporary international law allows states to take military action against terrorist organizations only when the level of violence is extremely high—a level that cannot be dealt with by ordinary law enforcement agencies.

Even if the Armed Conflict Paradigm is adopted, the question remains - which measures are legal in this type of conflict? International law does not provide a clear-cut answer:

Targeted Killings—the Israeli Supreme Court has ruled that killing terrorists is legal under certain circumstances provided that it is a last resort measure aimed at preventing them from continuing to participate in military action against the country. However, this legal position and its implementation are ambiguous. (It should be mentioned that the requirement to avoid harming terrorists when it is possible to arrest them does not apply to "regular" combatants.) For example, the Human Rights Committee expressed concern that Israel is using targeted killings to punish and to deter terrorists (Human Rights Committee, concluding observations, Israel, 2003).

The Legality of Extended Detentions—contrary to the clear standards provided by international humanitarian law, which allow the use of physical force against individuals that take part in a terrorist attack in times of an armed conflict, the Fourth Geneva Convention permits the arrest of civilinas (including those who participate in a terrorist act or belong to an enemy organization) only by way of criminal or administrative (preventive) detention. Indeed, Israel's Supreme Court recently ruled that the law of 2002 that pertains to the detention of unlawful combatants should be interpreted as a law that defines special proceedings for the administrative arrest and detention of terror suspects (based on the individual risks posed by each detainee) and not as a law that defines a broad new category of detainees (HCJ 6659/06, Anonymous).

On the other hand, the US Supreme Court confirmed the position adopted by the US administration in the Hamdi Case (2004) and ruled that unlawful combatants may be detained throughout the entire conflict. This ruling is apparently based on the assumption that these combatants cannot be classified according to the traditional categories of war laws - civilians or soldiers – therefore, a new set of laws are required.

The use of force against terrorist targets in foreign countries—in the Separation Wall Case (2004) and the Congo vs. Uganda Case (2005), the International Court of Justice upheld the opinion that a nation's right to defend itself does not include conduct of military operations in the territory of the country hosting the terrorist organization (without having established that it is legally responsible for the activities of the organization). It is important to point out that this ruling was harshly criticized, and it is doubtful that it is possible to apply it in situations of ongoing terrorism in which it is clear that the host state is unwilling or unable to take action against the terrorist organization in its territory. In any event, even those who support the use of force in such circumstances agree that measures taken to fight terrorism must correspond with the conditions of necessity and proportionality, which under certain circumstances may raise difficult questions of interpretation.

We have seen that international law currently does not provide a clear answer to the question concerning the circumstances under which, if any, it would be legal for a country to act in accordance with the three main measures included in the Armed Conflict Paradigm—killing terrorists, detaining them without trial and taking military action in a foreign country. It seems that part of the difficulty stems from the increasing influence of the position that human rights laws continue to apply even in times of conflict (see the International Court of Justice's ruling on the Legality of Nuclear Weapons), and that these laws serve as residual norms applicable in the absence of an established international humanitarian law norm or of guidelines to interpret the laws of war. This normative development adds a dimension of ambiguity to the laws that apply when the Armed Conflict Paradigm is adopted. In addition, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), as well as the most recent Israeli Supreme Court ruling regarding the legality of the law pertaining to the detention of illegal combatants (HCJ 6659/06), leads to the conclusion that under certain circumstances, the legal outcome of both paradigms is very similar (they both prohibit torture and allow administrative detention based only on the danger posed by the individual), and that the choice of one over the other actually could make very little difference.

From this discussion, we understand that international law, which regulates the war being waged by nations against terrorist organizations, is in the process of shifting from the traditional Law Enforcement Paradigm to the Armed Conflict Paradigm. Simultaneously, a political and legal battle is being waged over the boundaries of these two paradigms and the way in which they balance the need to protect human rights and security considerations.

Because this process of development of international law is not yet complete, existing legislation is ambiguous, rulings based on international law are incoherent and nations may sometimes act inconsistently.

It appears that the only conclusion that can be drawn at this point is that when extreme terrorism is employed against a country, it has some liberty in choosing between the two paradigms, which may have some significant legal implications under certain circumstances. Nonetheless, it is important to note that along with the process of differentiating between the paradigms, the boundaries between them often become unclear, particularly as a result of the expansion of the application of human rights laws in times of war. This last development complicates the legal situation even more, but also makes the process of choosing between the two paradigms less dramatic than some policy makers may believe.

Supreme Court Decisions:
• CrimFH 7048/97
• CrimA 6659/06
Other decisions (Hebrew)

International Convention on Civil and Political Rights, 16 December 1996.

Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 10 December 1984.

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, E.T.S.: 5.

Convention for the Prevention and Punishment of Terrorism, 16 November 1937 (not in force). Reprinted in R.A. Friedlander (ed.). 1979. Terrorism: Documents of International and Local Control 1. New York; Oceana, p. 253.

Convention on Offenses and Other Acts Committed on Board Aircraft, 14 September 1963, 704 U.N.T.S.: 220.

Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 860 U.N.T.S.: 106.

Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 23 September 1971, 974 U.N.T.S.: 178.

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, 1,035 U.N.T.S.: 168.
International Convention against the Taking of Hostages, 17 December 1979, 1,316 U.N.T.S.: 206.

Convention on the Physical Protection of Nuclear Material signed in Vienna on 3 March 1980, 1,456 U.N.T.S.: 125.

Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 24 February 1988, 1,589 U.N.T.S.: 474.

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 10 March 1988, 1678 U.N.T.S.: 222.

Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 10 March 1988, 1678 U.N.T.S.: 304.

Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1 March 1991, UN Doc., S/22393.

International Convention for the Suppression of Terrorist Bombings, 15 December 1997, UN Doc., A/RES/52/164.

International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, UN Doc., A/RES/54/109.

International Convention for the Suppression of Acts of Nuclear Terrorism, 13 April 2005, UN Doc., A/RES/59/290.

Security Council Resolution 1,267, 1999, UN Doc., S/RES/1267.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), 1986, I.C.J. 14.

Oil Platforms (Iran v. U.S.), 2003, I.C.J. 161.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004, I.C.J. 136.

Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), 2005, I.C.J. (forthcoming).

Concluding Observations of the Human Rights Committee, Israel, U.N. Doc., CCPR/CO/78/ISR, 2003.

Hamdi v. Rumsfeld, 2004, 542 U.S. 507.

Hamdan v. Rumsfeld, 2006, 548 U.S. 557.

Boumediene v. Bush, 2008, 126 S.Ct. 2749.

A (FC) v. Secretary of State for the Home Department, [2004], UKHL 56.

A (FC) v. Secretary of State for the Home Department, [2005], UKHL 71.

MB (FC) v. Secretary of State for the Home Department, [2007,] UKHL 46.

Secretary of State for the Home Department v. JJ (FC), [2007], UKHL 45.

Charkaoui v. Canada, [2007], 1 S.C.R., 350.

Case C-402/05, Kadi v. Council, Advocate General's Opinion of 16 January 2008.

Shany, Yuval. 2003. "Israeli Counter-Terrorism Measures: Are They 'Kosher' under International Law?" In Michael N. Schmitt (ed.). Terrorism and International Law: Challenges and Responses. San Remo: IIHL, p. 96.

Schöndorf, Roy S. 2004. "Extra-State Armed Conflicts: Is There a Need for a New Legal Regime?" N.Y.U. Journal Int'l Law & Politics 37:1.

Jinks, Derek. 2005. "The Applicability of the Geneva Conventions to the 'Global War on Terrorism'." Virginia Journal of Int'l Law, 46: 165.

Kretzmer, David. 2005. "Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?" E.J.I.L. 16: 171.

Shamir-Borer, Eran. 2007. "Revisiting Hamdan v. Rumsfeld's Analysis of the Laws of Armed Conflict." Emory Journal of International Law 21: 601.

Benvenisti, Eyal. 2008. "Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts." A.J.I.L 102: 241.

 

Prof. Yuval Shany is a Senior Fellow of National Security and Democracy Research at the Israel Democracy Institute

Notes

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