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The evolution of international law in light of the ‘global War on Terror’

Published online by Cambridge University Press:  01 September 2010


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Abstract

This article explores how various aspects of the ‘global War on Terror’ may be affecting the future development of international law on the use of force. I examine these effects within three areas of international law – the law of anticipatory self-defence, the law of self-defence against non-state actors, and the applicability of international humanitarian law to non-state armed groups. Only in the latter two areas do I find evidence that international law is evolving to accommodate the new realities of global terror. While such developments in the law reflect the supposed need by states to use military means to combat terrorism, they also seem to confer at least a limited international legal personality upon terrorist groups such as Al-Qaeda. This not only indicates a shift in the basis for legal personality, but also potentially undermines the legitimacy of international law and frustrates states' efforts at combating terrorism.


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Research Article
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Copyright © British International Studies Association 2010

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References

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2 Customary international law or ‘international custom’ is one of the primary sources of international law and is derived from the consistent practice of states over time who are under the belief that their behaviour is permitted or otherwise required by law. This psychological element – called opinio juris – must be present in order for state practice to count toward the development of international custom. See, Brownlie, Ian, Principles of Public International Law, 6th edition (Oxford: Oxford University Press, 2003), pp. 612Google Scholar .

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16 NSS, p. 6.

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21 Article 51 obliges states to report any self-defensive actions they take to the Security Council, with which states typically comply. See Gray, , International Lawi, pp. 101104Google Scholar .

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23 Kegley, Charles W. Jr. and Raymond, Gregory A., After Iraq: The Imperiled America Imperium (Oxford: Oxford University Press, 2007), pp. 67, 82, 101, 140Google Scholar . See also Brzezinski, Zbigniew, ‘Terrorized by “War on Terror”’, Washington Post (25 March 2007), B01Google Scholar .

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27 The official number officially supporting the war is difficult to establish. The US claimed over 40 states were prepared to go to war in support of the US effort, though other reports suggest figures closer to 30. See Bowman, Steve, ‘Iraq: Military Operations’, in Cardosa, Amy V. (ed.), Iraq at the Crossroads (Hauppauge, NY: Nova Publishers, 2006), pp. 137155Google Scholar . See also, Anderson, Sarah, Bennis, Phyllis, and Cavanagh, John, ‘Coalition of the Willing or Coalition of the Coerced? How the Bush Administration Influences Allies in the War in Iraq’, Institute for Policy Studies, Washington, DC (26 February 2003), p. 8Google Scholar .

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29 In addition to staunch opposition by important members of the UN Security Council at the time, namely France, Russia, China, and Germany, the leaders of 52 African states issued a statement opposing the war except as a last resort, and the 116 states that comprise the Non-Aligned Movement likewise issued a statement opposing the invasion. See Anderson, , Bennis, , and Cavanagh, , ‘Coalition of the Willing’, p. 10Google Scholar .

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31 See, Final Report of the National Commission on Terrorist Attacks upon the US (hereafter ‘9/11 Commission Report’) (New York: Norton, 2004), p. 66.

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35 Ibid.

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37 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US of America), (Merits), Judgment, 27 June 1986, ICJ Rep. 14 (hereafter “Nicaragua”), para. 195.

38 Ibid.

39 While this is the standard for attribution commonly associated with Nicaragua, the Court here was using this test to determine whether war crimes committed by the contras could be attributed to the US. Nicaragua, para. 109.

40 Ibid., para. 115.

41 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Rep. 131 (hereafter ‘Wall’), para. 139; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), (Merits) Judgment, 19 December 2005, ICJ Rep 116 (hereafter ‘DRC v. Uganda’), para, 146.

42 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (hereafter ‘Draft Articles’), Report of the International Law Commission, 53rd Session (2001), Supplement No. 10 (A/56/10), chp.IV.E.1, Article 8.

43 9/11 Commission Report, chaps 5, 7. Glennon, Michael J., ‘The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the UN Charter’, Harvard Journal of Law and Public Policy, 25:2 (2002), pp. 539558Google Scholar ; see also Quigley, John, ‘The Afghanistan War and Self-Defense’, Valparaiso University Law Review, 37:2 (2003), pp. 545546Google Scholar , and Drumbl, Mark A., ‘Victimhood in Our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order’, North Carolina Law Review, 81:1 (2002), pp. 3440Google Scholar .

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45 North Atlantic Treaty Organization (NATO), Statement by the North Atlantic Council, 12 September 2001, Press Release (2001)124, available at: {http://www.nato.int/docu/pr/2001/p01–124e.htm}.

46 Organization of America States (OAS), Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism, 21 September 2001, OAS Res. RC.23/RES.1/01, para. 3.

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53 Ibid., p. 147; see also Kirgis, Frederic L., ‘Some Proportionality Issues Raised by Israel's Use of Armed Force in Lebanon’, ASIL Insights, 10:20 (2006)Google Scholar , available at: {http://www.asil.org:80/insights/2006/08/insights060817.html}.

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57 DRC v. Uganda, paras 146, 147.

58 Ibid., para. 147.

59 NATO, Statement by the North Atlantic Council.

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65 DRC v. Uganda, Separate Opinion of Judge Simma, para 11.

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67 Stahn, ‘Terrorist Acts’, p. 45. As the ICJ held in Nicaragua, ‘the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another state, if such an operation, because of its scale and effects, would have been classified as an armed attack […] had it been carried out by regular armed forces’. Nicaragua, para. 195.

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70 Geneva Convention Relative to the Treatment of Prisoners of War (hereafter ‘Third Geneva Convention’), 75 UNTS 135, 12 August 1949, Article 3 (hereafter ‘Common Article 3’); Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (hereafter ‘Additional Protocol II’); 1125 UNTS 609, 8 June 1977; see also Zegveld, Lisabeth, The Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002), p. 151CrossRefGoogle Scholar .

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72 Common Article 3; Additional Protocol II, Article 1(1); see also Pictet, Jean S. (ed.), Commentary IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War (International Committee of the Red Cross: Geneva, 1958), pp. 3435Google Scholar .

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76 Zegveld, , Accountability of Armed Opposition Groups, p. 18Google Scholar .

77 Ibid., pp. 10, 151.

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93 Hamdan v. Rumsfeld, pp. 66–67.

94 Ibid., pp. 67–68.

95 Zegveld, , Accountability of Armed Opposition Groups, p. 136Google Scholar .

96 Sassoli, , ‘Transnational Armed Groups’, p. 12Google Scholar .

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106 Drumbl, , ‘Victimhood in Our Neighborhood’, p. 49Google Scholar ; Printer, , ‘The Use of Force’, p. 347Google Scholar .

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109 It is true that the leadership of Al-Qaeda has stated it wants to establish an Islamic caliphate – a state-like entity. However, Al-Qaeda has repeatedly rejected the legitimacy of the states system and the basic rules and norms upon which international society is founded. See Mendelsohn, Barak, ‘Sovereignty Under Attack: The International Society meets the Al-Qaeda Network’, Review of International Studies, 31:1 (2005), pp. 4568CrossRefGoogle Scholar .

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111 O'Connell, , ‘Enhancing the Status’, pp. 457458Google Scholar .

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