International Law in Crisis: Challenges Posed by the New Terrorism and the Changing Nature of War
Murphy, John F., Case Western Reserve Journal of International Law
The theme of this conference is "International Law in Crisis." Two prime examples of the challenges facing international law and international institutions are the so-called "new terrorism" and the changing nature of war. In contrast to the "old terrorism" the new terrorism, which is religiously inspired, is increasingly willing to kill large numbers of people and to make no distinctions between military and civilian targets. Moreover, as demonstrated most vividly by al-Qaeda, which is reported to operate in a network that spans roughly one hundred countries, the new terrorism has become a global threat rather than a threat located primarily in one country.
Prior to the horrific attacks of September 11, 2001, international terrorism had been treated primarily as a criminal law matter with emphasis placed on preventing the commission of the crime through intelligence or law enforcement means, or, if prevention failed, on the apprehension, prosecution and punishment of the perpetrators. After September 11th, however, the criminal justice approach was de-emphasized and, to a considerable extent, supplanted by the use of military means.
This shift to the military model of counter-terrorism has engendered considerable controversy. Supporters of the military model contend that criminal law is "too weak a weapon" and that it was inadequate to stop al-Qaeda from planning and carrying out the attacks of September 11th. Critics argue that it is unnecessary and threatens fundamental human rights. They suggest that normal law enforcement measures can effectively combat the threat of terrorism. Moreover, a decision to employ the military model of counter-terrorism in place of the law enforcement model, or vice-versa, may have serious functional consequences, which are considered in this article.
Use of the U.S. military to kill Osama bin Laden on May 2, 2011, in his heavily fortified Abbottabad compound in Pakistan was sharply criticized by various sources and outraged the Pakistani government and many of its people. It was equally strongly defended by the U.S. government, especially by the Legal Adviser to the U.S. Department of State, Harold Koh, who assessed the killing under the law of armed conflict and not under international human rights law.
As to the changing nature of war and its impact, World War II is a classic example of an international armed conflict between sovereign states, and the United Nations was set up primarily to prevent such a conflict in the future. But international armed conflicts currently constitute a small minority of all conflicts, and have been replaced by internal or non-international armed conflicts in the form of insurgencies, civil wars and terrorist attacks. These non-international armed conflicts are also examples of asymmetric warfare, which features armed hostilities in which one party to the conflict endeavors to compensate for its military or other deficiencies by resorting to the use of means of warfare that clearly violate the law of armed conflict or other rules of public international law. Examples of such means of warfare include the deliberate targeting of civilians, the slaughter of hostages, the embedding of fighters in the civilian population, and the use of human shields, especially civilians. What is particularly disturbing about asymmetric warfare is that violators of the law of armed conflict gain considerable military advantage in many instances by the adoption of such tactics because they can be extremely effective in countering the normally vastly superior capabilities of the other party, including in particular those of the United States.
I. INTRODUCTION II. THE "NEW TERRORISM" AND ITS IMPACT A. The "New Terrorism" B. Impact of the New Terrorism C. The Legality of the Killing of Osama bin Laden III. THE CHANGING NATURE OF WAR AND ITS IMPACT A. The Responsibility to Protect (R2P) B. The Arab Spring C. …