De-militarizing Counter-Terrorism: Anti-terrorism, Human Rights, and the Use of Force

• Author: Craig Forcese
• Pages: 165-202

165

De-militarizing Counter-Terrorism:

Anti-terrorism, Human Rights, and

the Use of Force

Craig Forcese1

A. INTRODUCTION

One phrase more than any other captures the reaction of the inter-

national community to the catastrophic events of September 11, 2001:

the “war on terror.” A reasonably apt descriptor of the initial post-9/11

assault against the Taliban and Al-Qaeda in Afghanistan, the term has

since morphed into a cultural meme, one used to describe the def‌ining

preoccupation of international (and much of domestic) relations in the

early twenty-f‌irst century.

But the war on terror is more than metaphor. The struggle against

the tactics of violence employed by Islamic jihadists has been militar-

ized since 9/11 to an extent unknown prior to that day. Certainly, states

have responded to terrorism by using military force in the past. The

Israeli experience is a case in point, as are U.S. air or missile strikes

in the wake of the 1986 Berlin discotheque terrorist bombing, the 1993

assassination attempt against former President George H.W. Bush, and

the 1998 embassy attacks in East Africa. Compared to the contemporary

1 The author would like to thank the Social Sciences and Humanities and Research

Council and the Law Foundation of Ontario for their support of his research. He

would also like to thank Koren Marriott, third-year LL.B. student at the University

of Ottawa, for her helpful suggestions on this paper.

craig forcese166

period, however, these uses of force were modest in both scale and dur-

ation. None involved “regime change” or (the rather unique Israeli ex-

perience aside) the invasion or occupation of territories. Post-9/11, the

latter two strategies have had pride of place among the tactics deployed

by the United States and its allies in places like Afghanistan and Iraq.

These military responses—justif‌ied sometimes under the rubric of

the “Bush Doctrine”—have challenged established legal doctrines on

the use of force by states. A rethinking of the rules of international law,

the Bush Doctrine is best known for advancing a theory of “pre-emptive”

use of military force against feared—as opposed to actual—adversaries.

By the time of this writing, the implications of that strategy continue to

play out in the streets of Iraq.

Perhaps even more radically, on the evening of September 11, 2001,

President George W. Bush announced that, in reacting to the calamities

of that day, the United States would “make no distinction between the

terrorists who committed the attacks and those who harbor them.”2 This

conf‌lation of terrorists with their host states constitutes a reassessment

of existing rules of state responsibility and their application in the law

of self-defence. If it is a correct assertion of current international law, it

signif‌icantly lowers the barriers on use of military force in responding to

both terrorists and their host states, greatly expanding the jus ad bellum.

Critically, anti-terrorism via military force changes the legal playing

f‌ield. The international criminal law response to terrorism (the preferred

approach to the terrorism of the twentieth century) does not pre-empt

other, regular rules of international law, such as in the human rights

area. However, once military force is employed with suff‌icient intensity,

this regular law gives way to the jus in bello, the law applicable to armed

conf‌lict. In this lex specialis, the absolute bar in international human rights

law on taking human life is tempered by International Humanitarian

Law (IHL). IHL accepts that combatants in an armed conf‌lict may be

targeted with lethal force and even permits collateral casualties among

civilians in some circumstances. In sum, life is much cheaper where anti-

terrorism is viewed as a military issue and not one of criminal law.

This may be the inevitable reality in the regions where the militar-

ization of anti-terrorism has been most marked: Afghanistan and Iraq.

2 George W. Bush, Presidential Address to the Nation on the Terrorist Attacks, 37

Weekly Comp. Pres. Doc. 1301 (11 September 2001).

de-militarizing counter-terrorism 167

President Bush announced, however, that the “war” “will not end until

every terrorist group of global reach has been found, stopped, and de-

feated.”3 He placed no geographic limit on this objective. Since this as-

sertion, military force has been deployed occasionally in other states, far

removed from the Afghan and Iraqi theatres. In these far-f‌lung places in

which a shadowy, potentially inter-generational struggle against Islam-

ist violence is contested, the “war on terror” meme could translate into

the dominance of international laws privileging state violence.

These are the concerns that animated the drafting of the use of force

portion of the Ottawa Principles on Anti-terrorism and Human Rights.4 I

was the original drafter of this section of the Ottawa Principles, and a

keen proponent of their development. Therefore, I bear disproportion-

ate responsibility for their content. However, with this opportunity for

second sober thought, it is time for an unsparing critique of the instru-

ment. The principles assert a conventional, even conservative, view on

the jus ad bellum use of force rules, denying that anti-terrorism may be

invoked to contort or extend established justif‌ications for the deploy-

ment of military force. They also urge that jus in bello does not entirely

exclude human rights principles from its ambit . In each of these re-

spects, the objectives of the principles are commendable. The principles

do, however, shy away from truly pronouncing on a series of diff‌icult and

controversial issues in the areas of jus ad bellum and jus in bello. On mil-

itarization, the principles may add little to the progressive realization of

an anti-terrorism strategy that is sensitive to human rights.

The chapter that follows explores the assertions made in this intro-

duction, and explains the rationale for the language employed in the

Ottawa Principles. It does so in three parts. The f‌irst part brief‌ly exam-

ines terrorism as a predominantly criminal act. The second examines

how anti-terrorism has affected the jus ad bellum. The f‌inal part high-

lights the impact the militarization of anti-terrorism has had on the jus

in bello, the law guiding state military conduct. The chapter concludes

by suggesting several areas that future iterations of the principles might

usefully probe more deeply.

3 George W. Bush, President’s Address Before a Joint Session of the Congress on the

United States Response to the Terrorist Attacks of September 11, 37 Weekly Comp.

Pres. Doc. 1348 (20 September 2001).

4 See the principles found in Part One of this book [Ottawa Principles].