1. 1 INTERNATIONAL TERRORIST GROUPS & ARMED CONFLICT

2. 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. 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. 4 “We believe that the biggest thieves and terrorists in the world are the Americans … We do not differentiate between those dressed in military uniforms and civilians; they are all targets in this Fatwa.” Osama bin Laden -1998

5. International Law on Use 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. 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. 7 Anticipatory Self-Defense –right to use military force when an attack is imminent

8. 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. 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. 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. 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. 12 ORDINARY OTHER INSURGENCY LIMITED GENERAL NUCLEAR CRIMES SPORADIC CIVIL WAR WAR WAR WAR RIOTS VIOLENCE ARMED GROUPS PEACEPEACE WARWAR 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. 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. 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

15. U.S. View: Armed Conflict with Al Qaeda & Taliban Bush Administration –international armed conflict Obama Administration –non-international armed conflict 15

16. 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. 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. 18 Question: How to determine prisoner of war status in international armed conflict with an international terrorist group? Geneva Convention on Prisoners of War Art. 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

19. 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 Conflict Combatant Status

20. 20 Not Entitled to Prisoner of War Status May Be Held to End of Conflict U.S. View: Al Qaeda & Taliban as Detained Enemy Combatants

21. 21 U.S. Determination of Combatant 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. 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. 23 Treatment of Captured International Terrorist Combatants Question: How must captured terrorist combatants be treated?

24. 24 Common Article 3 1949 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

25. Additional Protocol II Non-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 care 25

26. 26 Additional Protocol I 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 –respect for religious practices –wounded & sick protected, & receive medical care

27. 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. 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. 29 Conditions at Guantanamo Bay 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. 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. 31 U.S. Military Commissions to Try 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. 32 Civilian Criminal Court Option to 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. 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. 34