1 international terrorist groups & armed conflict

1

INTERNATIONAL TERRORIST GROUPS& ARMED CONFLICT

2

• Traditional View: terrorist groups are organized criminals– Context:

• sporadic, isolated acts of violence• relatively low risk to targeted society

– Applicable Law: • international & domestic human rights law

– Authorized Methods:• investigation• arrest• trial or extradition/rendition• punishment upon conviction

Terrorism as Crime

3

• Modern View: some international terrorist groups are a threat to international peace– Context:

• multiple and devastating attacks • violence equal to military attacks in armed conflict• groups seeking weapons of mass destruction• high risk to targeted society

– Applicable Law:• UN Charter Chapter VII Security Council powers

• customary international law right of state individual or collective self-defense

– Authorized Method:• military force against terrorist combatants

Terrorism as Armed Conflict

4

“We believe that the biggest thieves and terrorists in the world are the Americans … We do not differentiate between those dressed inmilitary uniforms and civilians; they are all targets in this Fatwa.”

Osama bin Laden

-1998

International Law onUse of Military Force by States

• Reflected in the UN Charter• Primary Charter Purpose: Maintain

International Peace & Security• Security Council Given Primary Responsibility

– determines threats to peace, breaches of peace, acts of aggression

– authorizes use of military force by Member States

5

6

• UN Charter Article 51:“Nothing in the present Charter shall

impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain peace and security.”

International Law on Use of Military Force by States

7

International Law on Use of Military Force by States

• Anticipatory Self-Defense– right to use military force when an

attack is imminent

International Law on Use of Military Force by States

• Self-Defense Must Be:– necessary: peaceful means not reasonably

available– proportionate: only that force required to

defeat attack & prevent future attacks

8

9

UN Security Council Resolution 1368:• regards 9/11 attacks, like any act of

international terrorism, as a threat to international peace and security

• recognizes the inherent right of states to act in individual and collective self-defense in response to international terrorist attacks

Use of Force By States Against International Terrorist Groups

10

• NATO Armed Attack Resolution

• Organization of American States Armed Attack Resolution

• Other States Offered Military Forces

Use of Force By States Against International Terrorist Groups

11

• U.S. Presidents:– armed conflict

• U.S. Congress:– law authorizing use of

military force

• U.S. Supreme Court:– armed conflict

Use of Force By States Against International Terrorist Groups

12

ORDINARY OTHER INSURGENCY LIMITED GENERAL NUCLEARCRIMES SPORADIC CIVIL WAR WAR WAR WAR RIOTS VIOLENCE ARMED GROUPS

PEACE

WAR

TERRORISM

Human Rights Law

Law of Armed Conflict

International Law Affecting States Combating Terrorist Groups

Spectrum of Conflict

Domestic Non-International International Violence Armed Conflict

Armed Conflict

?

13

• International Agreements• Non-International Armed Conflicts

– Common Art. 3, Additional Protocol II, & Others

• International Armed Conflicts– not applicable as to international terrorist groups

International Law of Armed Conflict & International Terrorist Groups

14

Customary Law of Armed Conflict & International Terrorist Groups

• No Authoritative Source

• Little Agreement Among States on Content

• 2005 Study by International Committee of the Red Cross

U.S. View: Armed Conflict with Al Qaeda & Taliban

• Bush Administration– international armed conflict

• Obama Administration– non-international armed conflict

15

16

• The regime of law that applies is the customary law of armed conflict

• Department of Defense Policy: – apply the law of international armed conflict in all armed conflicts

U.S. View: Applicable Law of Armed Conflict

17

Detention of Enemy Combatants

• Recognized right of a State in international armed conflict

• U.S. believes customary law permits detention in conflict with international terrorist group

• Detention may continue until end of active hostilities

18

Question: How to determine prisoner of war status in international armed conflict with an international terrorist group?

Geneva Convention on Prisoners of WarArt. 5: Should any doubt arise as to whether

persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to …[a category of persons entitled to PW status, their status shall be]… determined by a competent tribunal.

Captured Combatant:Determining Prisoner of War Status

• Lawful Combatants– Duty to wear uniform on battlefield & carry arms

openly– May attack the enemy– If captured, must be made PWs– May be tried for war crimes

• Noncombatants– May not attack the enemy– May not be intentionally targeted

• Unlawful Combatants– Fail to wear uniform on battlefield– Unlawfully attack wearing civilian clothes & do not

carry arms openly– If captured, no PW status, but detained until end of

hostilities– May be tried for war crimes (perfidy, intentional

targeting civilians

Law of Armed ConflictCombatant Status

20

• Not Entitled to Prisoner of War Status

• May Be Held to End of Conflict

U.S. View: Al Qaeda & Taliban asDetained Enemy Combatants

21

U.S. Determination ofCombatant Status

• Bush Administration: military determination without hearing

• Supreme Court: military determination with a hearing & judicial review of determination

• Congress: limits on judicial review of detention• Supreme Court: Guantanamo Bay detainees have

Constitutional right to judicial review

22

Guantanamo Bay Update

• January, 2009– President Obama decides on

closure within 12 months

• June, 2009– Congress prohibits closure and

transfer of detainees to U.S.

• Status of Remaining Detainees

• 1 in 5 Released Returned to Terrorism

23

Treatment of CapturedInternational Terrorist Combatants

Question: How must captured terrorist combatants be treated?

24

Common Article 31949 Geneva Conventions

• General Duties:– be treated humanely– be collected and cared for if wounded or sick

• Prohibitions on:– violence including murder, torture & cruel

treatment– outrages upon personal dignity including

humiliating or degrading treatment

Additional Protocol IINon-International Armed Conflict

• Prohibition on:– violence to health or physical/mental well

being, corporal or collective punishment, or threats

• General Duties:– Treat humanely and with respect– provide food & water = to local population– receive individual & collective relief and letters– allow practice of religion– wounded & sick protected, & receive medical

care25

26

Additional Protocol IInternational Armed Conflict

• Prohibition on:– violence to health or physical/mental

well being, corporal or collective punishment, or threats

• General Duties:– Treat humanely and with respect– respect for religious practices– wounded & sick protected, & receive

medical care

27

Treatment of Detained Al Qaeda & Taliban Combatants

Executive Branch•Presidential Order- November 2001

– treat detainees humanely•Presidential Memorandum- February 2002

– 1949 Geneva Conventions Common Article 3 did not apply since conflict was international

Judicial Branch

• Hamdan v. Rumsfeld- June 2006

– Common Article 3 does apply since conflict was non-international

28

Guantanamo Bay Detention Facility History• 2002: Camp X-Ray Temporary Facility

Camp Delta:• 2002: Camps 1 – 3• 2003: Camp 4 (for compliant detainees)• 2004: Camp 5 (maximum security)• 2006: Camp 6 (maximum security)• 2006: Camp Iguana (minimum security)• 2006: Camp 7 (high value detainees)

Camp X-Ray

Camp 4

Camp 6

29

Conditions at GuantanamoBay Today

• Meals Meeting Cultural & Dietary Needs• Worship Opportunities• Recreation & Educational Opportunities• Medical & Dental Care Meeting U.S. Military Standards• Voluntary Interrogations Meeting Field Manual Standards• Guard Training Prevent Abuse

30

•Law of Armed Conflict: Anyone Can Commit War Crimes•Any State Can Try War Crime Suspects•U.S. Law Has Long Allowed Trial by Military Commission

Trial of International Terrorist Group Combatants for War Crimes

31

U.S. Military Commissions toTry Terrorist War Crimes

• 2001 President Bush’s Military Order creates military commissions

• 2006 Supreme Court invalidates President’s military commissions

• 2006 Congress enacts Military Commissions Act

• 2009 President Obama affirms use of military commissions

• 2009 Congress enacts new Military Commissions Act

32

Civilian Criminal Court Optionto Try Terrorists

• Most war crimes are also violations of domestic criminal law

• Challenges in using civilian criminal trials:– higher standards of evidence– decreased probability of conviction– increased security costs– longer time to complete– greater opportunity for terrorist

propaganda

33

CONCLUSION

• States Facing Terrorism Balance Liberty & Security

• States May Engage in Armed Conflict with Certain International Terrorist Groups– customary international law

of armed conflict applies• Rule of Law Remains

Important

Individual Liberty / Public Security

34