The Counterterrorism War Paradigm versus International Humanitarian Law: The Legal Contradictions and Global Consequences of the US “War on Terror”

2019 ◽  
Vol 44 (04) ◽  
pp. 922-956
Author(s):  
Lisa Hajjar
Keyword(s):  
International Law ◽  
War On Terror ◽  
Legal Framework ◽  
Customary Law ◽  
Executive Power ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Strategic Objectives ◽  
The Us ◽  
Us Government

Since 2001, we have witnessed the development of a counterterrorism war paradigm built to advance claims about the post-9/11 scope and discretion of US executive power and to articulate specific interpretations of national security interests and strategic objectives in the “war on terror.” What makes this a paradigm rather than merely a conglomeration of evolving policies is the cohesiveness and mutual reinforcement of its underlying rationales about the rights of the US government to prosecute a territorially unbounded war against an evolving cast of enemies. Drawing on Bourdieu’s concept of a juridical field, the article focuses on how officials who constructed a legal framework for this paradigm, rather than disregarding international law wholesale, have engaged in interpretations and crafted rationales to evade some international humanitarian law (IHL) rules and norms while rejecting the underlying logic or applicability of others. This article traces the counterterrorism war paradigm’s development and explains how it now competes with and threatens to supersede the customary law principles enshrined in IHL.

scholarly journals ‘Not dead but sleeping’: Expanding international law to better regulate the diverse effects of ceasefire agreements

2020 ◽  
Vol 33 (3) ◽  
pp. 731-743
Author(s):  
Marika Sosnowski
Keyword(s):  
International Law ◽  
Legal Framework ◽  
International Humanitarian Law ◽  
Development Studies ◽  
Humanitarian Law ◽  
Economic Networks ◽  
Citizenship Rights ◽  
Geneva Conventions ◽  
Governance Institutions ◽  
New Research

AbstractCeasefire agreements are legally governed by international humanitarian law because they have generally been considered in relation to how they affect levels of violence. However, new research in the fields of anthropology, security, and development studies suggests that ceasefires can have many more ramifications. These range from their ability to influence governance institutions, property and citizenship rights, economic networks, and security mechanisms. Consequently, this article suggests that a broader legal framework is needed through which to consider ceasefires and their consequences. While canvassing the option of ceasefires being types of contractual documents or as special agreements under Common Article 3 of the Geneva Conventions, the article concludes that the best way to regulate ceasefire agreements is through an expanded version of lex pacificatoria. Rather than being governed by hard international law, such a move would allow for the implementation of more flexible programmatic standards to influence the myriad ways ceasefires are negotiated, the conduct of belligerents, and their diverse effects on the ground during wartime.

scholarly journals Instytucjonalizacja współpracy w zakresie grobownictwa wojennego

2015 ◽  
pp. 88-103
Author(s):  
Joanna Szymoniczek
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Public ◽  
Social Organizations ◽  
Law Of Armed Conflict ◽  
The Us ◽  
Special Protection

Resting places of fallen soldiers – war cemeteries – are monuments to soldiers’ heroism, and thus are of special significance not only for those who have lost their loved ones, but also for entire nations, countries and communities. Therefore, such cemeteries are created under the provisions of relevant authorities, and then put under the special protection of the public. These issues are closely regulated by international law established throughout the twentieth century. Cemeteries are protected by the state on whose territory individual objects are placed. However, the problem of cemeteries is more and more often the responsibility of social organizations. According to the international humanitarian law of armed conflict, specific tasks in this respect are assigned to the tracing services of Red Cross and Red Crescent societies, who deal with the registry of exhumation, inhumation and body transfer, hold deposits, establish the fate of victims of war and issue death certificates. Institutions that deal with exploration, keeping records, exhumation of remains and the construction or revaluation of the graves of fallen citizens buried outside the borders of their own countries include the Council for the Protection of Struggle and Martyrdom Sites, the German People’s Union for the Care of War Graves, the Commonwealth War Graves Commission, the Austrian Red Cross (Österreichisches Schwarzes Kreuz), the American Battle Monuments Commission, the US Commission for the Preservation of America’s Heritage Abroad and the Italian Commissariat General for the Memory of Killed in War (Commissariato Generale per le Onoranze Caduti in Guerra). For political reasons, tasks related to war cemeteries are assigned to social organizations, because their actions are believed to be more effective and less bureaucratic than those of states.

Casting light on the legal black hole: International law and detentions abroad in the “war on terror”

2005 ◽  
Vol 87 (857) ◽  
pp. 39-68 ◽  
Author(s):  
Silvia Borelli
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
War On Terror ◽  
International Standards ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Domestic Courts

AbstractThousands of individuals have been detained abroad in the context of the “war on terror”, both during the armed conflicts in Afghanistan and in Iraq and as a result of transnational law-enforcement operations. This paper argues that, notwithstanding contrary positions expounded by some States, the protections of international humanitarian law and/or international human rights law remain applicable to these individuals, wherever detained, and examines recent decisions of domestic courts and international bodies which appear to reveal a reassertion of international standards.

Compromise or Commitment: Human Rights and International Humanitarian Law Obligations for UN Peace Forces

1998 ◽  
Vol 11 (2) ◽  
pp. 229-245
Author(s):  
Marten Zwanenburg
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Framework ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The One

Allegations of human rights and humanitarian law violations by UN forces have highlighted the need for more clarity in this area. This requires a focus on human rights and humanitarian norms applicable to UN forces, and the question of responsibility for violations of those norms. To a large extent, these questions concern the relations between the UN, national contingents, and troop contributing states. What are their respective rights and obligations? In this paper it is submitted that the answer given to this question under international law differs from the one given in the specific legal framework and practice of UN forces.

The development of new anti-personnel weapons

1990 ◽  
Vol 30 (279) ◽  
pp. 565-577 ◽  
Author(s):  
Louise Doswald-Beck ◽  
Gérald C. Cauderay
Keyword(s):  
International Law ◽  
The State ◽  
Good Faith ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
New Developments ◽  
Additional Protocol ◽  
Study Development

Article 36 of Additional Protocol I of 1977 states that:“In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party”.The provision is not new law, but codifies the customary law duty of implementing a treaty or customary rule in good faith. Article 36 does, however, draw attention to the fact that new developments in weapons are quietly going on, and that care must be taken, before their deployment, that their use in some or all circumstances does not violate international humanitarian law. Although the duty to determine in advance the legality of the use of new weapons lies with the State developing them, other States have a legal interest in ensuring that this is done.

scholarly journals No End in Sight? US Policy on Targeted Killing by Aerial Drone Strikes: a Legal-Political Assessment

2014 ◽  
Vol 15 (1) ◽  
pp. 61-85
Author(s):  
Matthias Maass
Keyword(s):  
Legal Framework ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
President Obama ◽  
Terrorist Organizations ◽  
Self Defense ◽  
Systematic Effort ◽  
The Us ◽  
Drone Strikes ◽  
Rules Set

Recently, President Obama stated: “Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end.” I investigate America’s legal basis, its claim to self-defense in response to 9/11, and conclude that this claim is weakening rapidly due to the passage of time and military successes. Similarly, the case for drone strikes as pre-emption is fading due to the damage drone strikes have done to Al Qaeda’s capabi-lities. I conclude that overall US drone strikes follow the rules set by International Humanitarian Law (IHL). How-ever, today America’s rationale for these missions is shi-fting away from defeating Al Qaeda towards deterring its members and sympathizers. In this case, the US would most likely be in breach of IHL. I complete the analysis by claiming that the recent recognition of Obama that “this war... must end” still lacks the need for a new legal framework for America’s counterterrorism efforts.

Protecting cultural property in Syria: New opportunities for States to enhance compliance with international law?

2017 ◽  
Vol 99 (906) ◽  
pp. 1037-1074 ◽  
Author(s):  
Polina Levina Mahnad
Keyword(s):  
International Law ◽  
Legal Framework ◽  
International Community ◽  
Cultural Property ◽  
Third Party ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Loss Of Life ◽  
Near Future ◽  
Political Settlement

AbstractThe war in Syria has lasted for six years and has led to massive destruction and loss of life. Stymieing international peace efforts from the outset, there is increasing doubt that the conflict will reach a resolution or political settlement in the near future. This frustration has triggered an appetite among States, civil society and the international community for finite and concrete measures that can contribute to greater protection and compliance with international law. A recent constellation of events around the protection of cultural property appears to herald a shift in the response of the international community toward prescribing practical and actionable measures for third-party States. Drawing on the responsibility of third States “to respect and ensure respect for” international humanitarian law, this article examines the legal framework protecting cultural property and recent innovative protection responses that contribute to ensuring compliance with international law in Syria, short of military assistance and intervention.

Armed Drone

2018 ◽  
pp. 118-129 ◽  
Author(s):  
Ioannis Kalpouzos
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
War On Terror ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
New Paradigm ◽  
Targeted Killing ◽  
Material Functions ◽  
The Media

The most widely reproduced image of an armed drone is a Photoshop construct combining the object, the missile, and the Afghan landscape. This chapter enquires into the symbolic and material functions of the object in relation to international humanitarian law through three perspectives/images: that of the object itself as proliferated in the media; the image(s) the object generates for targeted killing; and that of the object for the targeted. The qualities of the object and those images speak to the promise and threat that international law(yers) see in the armed drone. The chapter assesses and critiques the drone’s promise of precision, in targeting and governing armed conflict, as well as the promises of asymmetry and invulnerability. It argues that the object of the armed drone plays a mythical function, in establishing a ‘new paradigm’ of war and law through new weapons technology in the context of the ‘war on terror’.

Treaties for Armed Conflict

2014 ◽  
Author(s):  
Robert Kolb ◽  
Katherine Del Mar
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Public International Law ◽  
Law Of Armed Conflict ◽  
The Law

This chapter begins with a discussion of the importance of treaties in the law of armed conflict. Specifically, it presents seven reasons why the law of armed conflict is one of the branches of public international law that has been the most intensely codified through treaties. It then discusses treaties and international customary law; the main treaties on international humanitarian law (IHL); problems of ratification of IHL treaties; reservations to IHL treaties; legal relationships between IHL treaties; interpretation of IHL treaties; special agreements; denunciation of IHL treaties; and the legal effects of a breach of an IHL treaty.

scholarly journals Applicability of the international humanitarian law to the fight against the Islamic State during the 2013-2017 conflict in Iraq

2021 ◽  
Vol 200 (2) ◽  
Author(s):  
Krystian Mularczyk ◽  
Karolina Saska
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
International Conflict ◽  
The United States ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Law Of Armed Conflict

The article addresses the applicability of international humanitarian law during the armed conflict in Iraq in 2013-2017 waged against the Islamic State. The paper answers how to classify this conflict against the background of the law of armed conflict. The argumentation for considering it as a non-international conflict with the Islamic State and the Iraqi government as parties is presented. The discussed failure to recognize the Islamic State's status as a state within the meaning of international law does not classify the armed conflict as international. The classification has not been changed by the United States and allied states' intervention, which, as one at the invitation of the Iraqi government, does not mean qualifying the conflict as international. The article also discusses the scope of the norms of international humanitarian law that apply to the conflict in question. It primarily concerns Article 3 that is common to the Geneva Conventions and customary law. Protocol II supplementing the provisions of the Geneva Conventions will not apply as Iraq is not a signatory to it.

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