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

Below is an abridged version of an article by IDI Senior Fellow Prof. Yuval Shany that discusses the fight against terrorism as seen by the Law Enforcement Paradigm and by the Armed Conflict Paradigm in the context of international law and surveys the implications of choosing one model over the other. For the full version of this article, click here.

Introduction

Terrorism is by no means a recent development, nor are the international legal efforts to cope with it. Several international conventions pertaining to the struggle against specific terrorist acts have been adopted, and the UN is currently negotiating a comprehensive convention that would forbid any type of involvement in international terrorism. In most of the existing international conventions, terrorism is perceived as a criminal offense that must be dealt with according to criminal law (hereinafter: the Law Enforcement Paradigm).

However, in light of the recent emergence of fundamentalist groups that are capable of causing severe damage, which until recently could only have been caused by foreign armies, a new paradigm is being considered – one that suggests viewing the war on terror as a military struggle rather than a criminal one (hereinafter: the Armed Conflict Paradigm). According to this paradigm, countries may sometimes take drastic measures that do not correspond with the Law Enforcement Paradigm, such as the killing of terror-suspects (targeted killings), prolonged administrative detention without trial, and military actions in a foreign country—measures that usually characterize military operations in times of war.

This brief paper, which will examine these two paradigms in the context of international law and will survey the implications of adopting one over the other, is based on the assumption that international law is a major consideration that influences the anti-terrorist policy adopted by international organizations, by countries and by the public.

The Law Enforcement Paradigm

Traditionally, international terrorism has been perceived by domestic and international law as a criminal offense, and the methods used to fight it have been comparable to those that are used against any other criminal activity—interrogation, indictment and incarceration.

The recent intensification of terrorism and the threats posed by it have led to a transformation of the traditional paradigm that aims at empowering governments with better and more efficient enforcement measures, even at the cost of restricting some human rights. Some changes in the Law Enforcement Paradigm have already been implemented in the UK, France, Spain, Canada, Australia, Israel, India and the US:

• Extending administrative detention periods of terror-suspects without requiring legal oversight or indictments.

• Limiting terror suspects' right to legal representation.

• Labeling as confidential the materials gathered in investigations against terror suspects, thus limiting access to it.

• Relying on evidence that would otherwise have been inadmissible in normal legal procedures, and transferring terrorism cases to special courts or tribunals for trial.

In other countries (including Israel), governments have also taken measures to restrict the movement of terror suspects, to use irregular interrogation methods and to inflict collective punishment (such as the destruction of homes or the expulsion of family members of terrorists) in order to fight terrorism more effectively.

The main article regulating the legality of irregular enforcement measures from an international legal perspective is Article 4 of The International Covenant on Civil and Political Rights (1966), which Israel joined in 1991. According to this article, nations may deviate from their obligation to uphold human rights in extreme states of emergency. Nonetheless, any such derogation must be "strictly required" (and according to the widely accepted interpretation, also proportionate), nondiscriminatory and in line with other internationally accepted norms. In addition, the covenant states that some human rights must never be derogated from and must be upheld at all times, including the right to life and the ban on torture.

Some recent court rulings in the UK, Israel, the US and the EU assert the importance of limiting attempts to reevaluate the balance between upholding human rights and battling terrorism.

The Armed Conflict Paradigm

It is against this background in which human rights laws are establishing a long list of fundamental procedural limitations on the government's ability to fight terrorism that one questions whether these laws provide an appropriate and effective framework to confront the threat of terrorism. Indeed, Israel defined its own conflict with the Palestinians during the Second Intifada (which broke out in 2000) as an armed conflict. The US and some of its allies declared a "global war on terror" against Al-Qaeda following the attacks of September 11, 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 permits the employment of more severe measures, such as the targeted killing of terrorists, even when they do not pose an immediate threat. In addition, Israel and the US have passed legislation that defines terrorists as "unlawful combatants", thus allowing their detention until the cessation of hostilities. Under certain circumstances, the Armed Conflict Paradigm allows states to use military force against terrorist organizations even if the targets are located in the sovereign territory of a another country (such as NATO's military presence in Afghanistan and Israel's operations in Lebanon).

In order to take advantage of the arsenal of broader and more extreme measures that are made available by the Armed Conflict Paradigm, many countries today, unlike in the past, prefer to officially declare the war on terror to be an armed conflict. But the question still remains—is the Armed Conflict Paradigm in line with international law? Or in other words: under what circumstances does a state have the right to adopt the Armed Conflict Paradigm?

International humanitarian law identifies two main types of conflict—international armed conflict and non-international armed conflict, and it is difficult to classify terrorism as one or the other. Nonetheless, regardless of the way terrorism is classified, international law seems to allow a state to adopt the Armed Conflict Paradigm only in the event of an extremely severe terrorist attack against it, which normal law enforcement agencies are not prepared to handle.

Even if the Armed Conflict Paradigm is adopted, international law does not provide clear answers to the question concerning the circumstances that would legally permit the implementation of the three main components of the Armed Conflict Paradigm—targeted killings, detention without trial and military action on foreign territory. Some of the difficulty in employing these measures stems from the notion that human rights laws are also applicable in times of war. Moreover, the UN Convention Against Torture of 1984, as well as the Israeli Supreme Court's most recent ruling pertaining to the legality of the law concerning the detention of unlawful combatants (HCJ 6659/06) demonstrate that in some cases, there is no real difference between the two paradigms (they both prohibit the use of torture and they both allow administrative arrests based only on the danger posed by the individual suspect).

Conclusion

International law is in the process of shifting from the Law Enforcement Paradigm, which has served as the framework of the legal war on terror during the past decades, to the Armed Conflict Paradigm. At the same time, the limits of each of the paradigms and the proper balance between human rights and security considerations are being debated in legal and political settings.

Existing international legislation in this field has yet to be fully developed, and currently remains quite ambiguous. It seems that the only conclusion that may be drawn at this point is that in the event of a massive terrorist attack against a sovereign state, it has a certain degree of freedom to choose either one of the two paradigms. Nonetheless, it should be noted that despite the attempt to differentiate between the paradigms, the differences between them are sometimes unclear, primarily due to the relatively new tendency to apply human rights laws in times of war, which may make the choice between the paradigms less significant than some policy makers may think.