Humanitarian law and the war against international terrorism: Challenges and opportunities since September 11, 2001

Abstract

The action by the US to invade Afghanistan and Iraq in its stated war against international terrorism represented a great paradigm shift in the law of armed conflict. The response invoked a confluence of legal regimes and norms in unprecedented ways. What would generally have been thought to be the key legal issues were not, and what was never anticipated as crucial legal concerns became so. There has been one question which has come up time after time in the consideration of the paradox: Is the war on terrorism 'war' and, therefore, requiring military responses or is it simply a matter for law enforcement? Before September 11, 2001, terrorism had generally been treated as an issue for law enforcement. After September 11, 2001 the US considered that exclusive law enforcement measures to tackle the menace of terrorism were insufficient. It was then decided to involve the military since the general view was that the September 11, 2001 attacks had risen beyond mere criminal conduct and were deemed to be acts of war. However, the articulation of the war has not been clear. If the war on terror is indeed a war as advanced by the US, one would have expected that the application of international humanitarian law in the process would have been automatic. In reality it has not been easy to conceptualize the applicability of that law in this new war in contradistinction to the application of the general human rights law, domestic legislation and international law on cooperation in criminal matters. There is an emerging view which suggests that the USA has made terrorism an all encompassing concept which is at times used by it to block or justify violations of human rights and internationally recognized humanitarian standards. The US has sometimes used the idea of national security as an excuse to justify its actions of sacrificing humanitarian values and principles as enshrined in the United Nations Charter, international covenants on human rights XXlll

and the Geneva Conventions for the protection war victims among other important international instruments. Further, it appears that the direction taken by the US in dealing with the problem has been largely guided by national politics of hegemony. Its strategy has been bereft of objectivity and has obscured the efforts by legal scholars and practitioners to undertake symmetrical studies to come up with universally acceptable rules that would fully address the real problem. Such studies would probably be able to review international humanitarian law and other rules of international law and their relevance to the war against international terrorism or propose a new legal framework to deal with the challenges posed by the new war. The framework could consider issues such as the regulation of groups such as Al Qaeda and others engaged in international terrorism and their activities. Due to the influence of the USA, there has been a glib condemnation of terrorism without a scientific impartial study to come up with civilized means and methods of eradicating it. The result has been a lack of clear policy within the international community to deal with the problem with the consequence that the war against international terrorism has been fought without known values or principles. By agreeing to sink to those levels, the international community has in fact granted terrorists victory on a silver platter. This paper tries to investigate the effects of politics hegemony of the US on the development and application of international humanitarian law in the war against international terrorism since September 11, 2001. The paper will also attempt to discuss ways in which nations of the world can tackle the menace of international terrorism without sacrificing the internationally recognized humanitarian standards for the protection of human life and dignity in time of conflict.