COUNTER TERRORISM-AND THE USE OF FORCE Flashcards
What are the 2 Issues that exacerbate terrorism?
1) the absence of human rights in counter-terrorism initiatives
2) the absence of the rule of law
What is the impact of 9/11?
1) allied agreement: counter-terrorism out of reach of judiciaries
2) does terrorism justify exceptional measures that deny HR/requires extraordinary measures
3) ambiguous
4) are international laws outdated?
What are the adverse consequences of 9/11?
1) thrill of executive power
2) statute of limitations
3) overreach potential
The U.S. war on terror-key derogations
1) indefinite detention without trial
2) unlawful surveillance of American citizens
3) use of torture
4) extrajudicial killing
What were the “torture memos”?
Issued by the justice department in 2002, providing arguments to keep U.S. officials from being charged with war crimes for the way prisoners were detained and interrogated. A wide range of coercive techniques were authorized, argued that deviation was necessary due to threat of terrorism. Allowed things like hooding, nudity and physical contact.
What was the Abu Graib Scandal?
During the early stages of the Iraq war members of the U.S. army and the Central Intelligence agency committed a series of human rights violations and war crimes against detainees in the Abu Graib prison in Iraq including physical abuse, sexual humiliation, physical and psychological torture and rape, as well as the killing of Manadel al-Jamadi and the desecration of his body. The torture memos came to light a few years later.
Do these tactics work?
(the three tactics that were suggested, arbitrary detent., torture, leth
1) often exacerbates terrorism
2) promotes anti-west sentiment
3) attracts recruits
4) contravenes jus cogens law
What violations are potentially permissible?
(3 types used by US)
1) lethal force
2) arbitrary detention
3) torture
Why is lethal force not permissible?
1) the right to life is protected by the ICCPR
2) false to assume automatic justification in the name of the state
3) states must apply same rights to terrorists as any other
4) otherwise: objectivity of law is diminished
5) international law: all means much be exhausted before lethal force is used
When is there Permissible Derogation?
1) “Kelly vs UK” the test of absolute necessity
2) when failure to arrest will bring about imminent death
3) imminent terrorist threat
What are the problems with permissible derogation?
- humans can not see into the future
- subjective assessment
When are targeted killings permissible?
1) argument: when suspect is not susceptible to arrest
2) better then engaging in all out war
3) less extreme route: target the threat rather then state
What does the human rights committee say about targeted killings?
1) no
2) empirical evidence does not support killings
3) wrong targets
4) extrajudicial killings have no due process
The Assassination of Qassim Soleimani/What does international law say?
1) An Iranian general killed by a U.S. drone in Iraq (2020). He was in charge of secret missions and providing to terrorist groups. The argument is that this was necessary to stop a war between the U.S. and Iran.
2) The test for anticipatory self defense is narrow: it was instant, overwhelming and with no time for deliberation. The U.S. did not use word imminent and received no consent from Iraq. However, the U.S. maintains that self defense includes non-imminent attacks. The international response agreed with Iraq but who was going to do anything.
Was it justifiable to kill Osama Bin Laden?
Yes: act of congress 2001: authorization of military force, he was resisting, he was an active combatant, track record of using unconventional warfare, new forms of attack authorize new forms of defense
No: man had a right to life and all rights are still valid in emergencies, he was not armed, rule of law states should not compromise their integrity, war on terror is a misleading rhetoric, Al-Qaeda cannot be classified as a party of conflict, not authorized by the UNSC, threat was not imminent
