Writing back in the 1970s, Baxter noted that ‘the first line of defence against international humanitarian law is to deny that it applies at all’. Controversy around International Humanitarian Law (IHL) applicability has been a staple feature of international practice for decades: denials that armed conflicts exist lest ‘terrorist’ adversaries be legitimised; or exorbitant claims that they arise from intransigent problems of law enforcement such as drug-related violence or terrorism. Today, controversies concerning the applicability of IHL, and its significance, are ongoing, and increasingly inextricably bound up with the question of co-applicability with other areas of international law, in particular international human rights law (IHRL). The implications of over- and under-inclusive approaches to IHL applicability depend to a large extent on the approach taken to co-applicable law. On the one hand, the denial of IHL applicability to evade the strictures of that body of law assumes a narrow view of IHL as the only relevant constraining law, the non-applicability of which leaves a legal vacuum to be exploited.

The starting point for an analysis of IHRL is the principle of universality: human rights stem from the intrinsic value or the inherent dignity of the human being, irrespective of nationality, status, or indeed alleged wrongdoing. In this vein, as the German Constitutional Court has noted, ‘dignity is not therefore at the disposal of the individual’, just as it is not at the disposal of the state. Rather, IHRL at its core seeks to ensure a basic standard of protection for all human beings at all times, in all places. It becomes more critical, not redundant, in the face of situations of crisis.

Much state practice post-9/11 has challenged this fundamental premise of the universality of human rights law, as will be seen in Part B below. An exceptionalist approach has emerged recurrently, questioning the ‘applicability’ of the human rights framework (whether it is applicable at all, rather than simply as to how it applies) to certain classes of individuals, offshore locations, in a ‘war’ on terror, or in security-challenged situations more broadly. Likewise, the pitting of ‘security’ against ‘human rights’, or resort to the war paradigm, has at times brought into question whether human rights are a luxury we can afford in the face of international terrorism, and questioned how apt or well equipped the human rights framework is to adjust and respond to security challenges.

Introduction

Immediately following the 11 September 2001 attacks, the US government decided that a key component of its ‘war on terror’ would include covert international CIA action targeting ‘high-value targets’ for lethal use of force or detention for intelligence-gathering purposes. On September 17, 2001, President Bush signed a classified Presidential Memorandum of Notice granting the CIA authority to detain terrorist suspects and to set up secret detention facilities (sometimes known as ‘black sites’) outside the US where it could subject ‘high-value detainees’ (HVDs) to ‘enhanced interrogation techniques’. The result was an innovative, systematic and complex programme of ‘extraordinary rendition’, operated by the CIA, designed and authorised at the highest levels of the Bush Administration, and made possible by a global network of cooperation and support.

‘Extraordinary rendition’ involved the state-sponsored abduction from one country, with or without the cooperation of the government of that country, and the extra-judicial transfer to another country for detention and abusive interrogation outside the normal legal system. Several characteristics of the ERP make it worthy of special consideration as a case study. First, extraordinary rendition may represent the nadir of the descent into international illegality of the ‘war on terror’. It not only involved serious criminality, but a scheme specifically designed and meticulously carried out to nullify the effect of the law – removing entirely its protection, avoiding oversight and leaving no trace, and permitting no prospect for accountability. It was shaped around a policy of systematic torture, a violation of the most firmly enshrined prohibitions in international law. The ERP embodied and epitomised the dehumanisation of individuals and their reduction to objects of ‘intelligence’ value, pursuant to the all-consuming end of intelligence-gathering.

A defining feature of practice since 2001 has been the large-scale detention of persons ‘for reasons related to the conflict’ that the US purports to be waging against al Qaeda and associated groups. While people have been detained in many centres across the world, by the US or by proxy, a major repository for detainees, and symbol of the ‘war on terror’, has been the United States Naval Base in Guantánamo Bay, Cuba. Since early January 2002, an estimated total of nearly 800 people, including nationals of at least forty states, have at some point been transferred to and held in detention facilities at Guantánamo.

The location of the detention centre on Guantánamo Bay, which the United States authorities claimed was beyond US sovereign territory, was an acknowledged attempt to circumvent the application of human rights protections in the United States Constitution and access to US courts. The detainees were labelled ‘enemy combatants’, in support of the view that normal criminal and human rights law did not apply, though the epithet was simultaneously relied upon to justify the non-application of the protective aspects of international humanitarian law. They came to be held in what has correspondingly been described as a ‘legal black hole’ or ‘legal limbo’.

This chapter considers the law relevant to the question whether, and if so in what circumstances, states are entitled to resort to the use of force under international law as a response to acts, or threats, of international terrorism. The legality of the use of force between states under international law is referred to as the ‘jus ad bellum’. Part A of the chapter addresses key aspects of the relevant legal framework, which part B then analyses alongside examples of state practice in response to international terrorism since 9/11. Specifically, it addresses the military interventions in Afghanistan and Iraq which followed 9/11 and the on-going targeting of members of al Qaeda and associated groups around the world.

The distinction between the body of law addressed here, and those considered in other chapters of this study, bears emphasis at the outset. The jus ad bellum which determines when use of force on another state’s territory is lawful must be distinguished from jus in bello that encompasses the rules that apply once force has been used and a conflict is underway, and which applies irrespective of whether the resort to force was lawful. The lawfulness of the use of force between states, discussed here, is also distinct from the lawfulness under human rights law of the use of lethal force. The use of force may be lawful under the jus ad bellum, but still a violation of the individual’s rights under the quite different normative standards of IHRL. As practice will show, confusion – whether deliberately fuelled or inadvertent – has often surrounded these divergent areas of law and the justifications available to states under each.

Much has changed since 2004, when the first edition of this book was completed. Global anti-terrorism practice has ballooned. Legal, policy and structural developments on the national, regional and international levels have created an elaborate architecture around security and counter-terrorism, while at times challenging fundamental rules of the international legal order. In turn, political, judicial and other responses to counter-terrorism measures have emerged, of potentially critical significance to the long-term implications of the war on terror. While the legal framework may not have undergone the transformative shift some heralded post-9/11, one result is undoubtedly a more elaborate body of law governing terrorism and counter-terrorism. This legal framework sits alongside a vastly expanded body of practice, which continues to grow and to spread its reach, assuming new forms and embracing broader ranges of behaviour under the banner of security and counter-terrorism. Given the nature and extent of developments in this area, this edition inevitably varies from the first edition in significant respects.

The book maintains as its key objective the identification and exploration of the current international legal framework governing terrorism and counter-terrorism. Many years into post 9/11 counter-terrorism practice, it takes into account how, in a particularly dynamic field of practice, the legal framework has itself been shaped and influenced by post-9/11 practice. Alongside consideration of the legal framework, it highlights and illustrates counter-terrorism practices that have unfolded, and issues of international legality that have arisen, during the thirteen years of practice since 9/11. Some of this practice represents clear violation – or perhaps the marginalisation – of the legal framework explained in the book; some raises novel legal questions to be grappled with regarding the application of the law or whether there are gaps or tensions in the framework itself.

Introductory overview of available facts

On May 1, 2011, twenty-five highly trained US Navy SEALs raided a compound in Abbottabad, Pakistan where bin Laden, some of his family and his bodyguard had been hiding. The SEALs overwhelmed the compound, and shot bin Laden and another five individuals dead. Hours later, President Obama announced that ‘justice had been done’.

Analyses and opinion promptly followed. While many applauded – including notably UN Secretary General Ban Ki-moon – dissenters lamented the decision to kill rather than capture and prosecute bin Laden as an ‘assassination’ or, in the words of former German Chancellor Helmut Kohl, ‘quite clearly a violation of international law’. Slower to emerge, as well as erratic and inconsistent, were details of the nature of the operation upon which, as explained below, legality in fact depends.

Different versions of the facts have ‘evolved’ over time. The earliest reports suggested that bin Laden was armed and ‘engaged in a firefight with those that entered the area of the house’ and that he had used a woman as a human shield.7 Shortly thereafter, a spokesperson stated that they ‘expected a great deal of resistance and were met with a great deal of resistance’, describing a ‘highly volatile fight out’ in the compound. By other official accounts neither bin Laden nor anyone else in the room with him when he was killed was armed, while the Press Secretary noted somewhat obliquely that ‘resistance does not require a firearm’.

To the extent that acts of international terrorism constitute crimes under international – or relevant national – law, those responsible, directly or indirectly, are susceptible to international and/or domestic investigation and prosecution. States not only have the right under international law, but also the duty, to bring criminal law to bear on individuals who commit serious crimes. This corresponds to the right of victims of terrorism to have the violations of their rights investigated and those responsible held to account.

Criminal law enforcement may serve multiple goals, ranging from those embraced by traditional theories of retribution, deterrence or redress, to providing historical narratives of wrongdoing and ‘debunking the glorification of violence’. Directly and indirectly, the criminal process can contribute to the prevention of terrorism. Critically, while criminal law is only one of the international legal tools against terrorism, the expressive function of criminal trials can play a role in restoring or strengthening the rule of law. Conversely, the neglect of criminal law enforcement may itself have an expressive function in suggesting that counter-terrorism is less about ‘justice’ than it is about other goals.