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Terrorism (International Law)

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  1. Introduction
  2.  
  3. International law has struggled to regulate terrorism for over a century, beginning with efforts to cooperate in the extradition and prosecution of suspects, including through unsuccessful League of Nations efforts to define and criminalize terrorism as such. Until 2001 most international attention focused on transnational criminal cooperation against terrorism, through the development of method-specific “prosecute or extradite” treaties (concerning, for instance, violence against aircraft or ships, hostage taking, or attacks on diplomats) but without defining terrorism as a general concept or crime. It may, however, be possible to qualify some terrorist acts as war crimes or crimes against humanity. Since the 1970s, there were ambivalent efforts through the UN General Assembly to develop normative frameworks to confront terrorism per se, which often came unstuck on the controversial issues of “state terrorism” and liberation movement violence. Greater consensus was achieved by 1994 with the General Assembly’s adoption of a declaration against terrorism. There appears to exist an international consensus that terrorism per se is wrongful, even if disagreement remains about identifying precisely what constitutes terrorism. The effort to deal with terrorism as such suggests that the international community views terrorism as more than its underlying physical parts, which are already crimes in most national legal systems and under certain transnational treaties. The special wrongfulness of terrorism is perhaps signified by its intimidation of civilian populations, its coercion of governments or international organizations, and its political, religious, or ideological aspect. Terrorist violence has also sometimes raised certain problems under the law of armed conflict and the law on the use of force, as well as occasionally attracted sanctions imposed by the UN Security Council. Terrorism was generally dealt with, however, through the application of general legal norms rather than through the emergence of terrorism-specific rules. After the terrorist attacks of 11 September 2001, sharper international focus was brought to bear on the legal challenges presented by terrorism and counter-terrorism in numerous specialized branches of international law (particularly in the law of state responsibility, the law on the use of force, and international humanitarian law), as well as in the institutional practices of the UN Security Council and the impacts of counter-terrorism measures on international human rights law. By 2011 the UN Special Tribunal for Lebanon even declared the existence of an international customary law crime of transnational terrorism, although that decision has proven highly controversial as not supported by state practice. Efforts to negotiate a comprehensive international convention against terrorism have continued since 2000, with disagreement remaining over the scope of exceptions. There is also now increasing debate about whether a field of international anti-terrorism law is emerging.
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  5. General Overviews
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  7. There are few book-length overviews of terrorism and international law, not least because traditionally most scholars have not perceived the existence of a discrete field of international anti-terrorism law as such (Higgins 1997, Guillaume 2004), though this is changing (Moeckli 2008, Saul 2009). There are, however, various edited collections that consider how general norms of international law, including specialized branches of it, apply to the special problems presented by terrorism and counter-terrorism (Higgins 1997 and Duffy 2005) as well as (Bianchi and Naqvi 2004; Walter, et al. 2004; Ramraj, et al. 2005 and Stubbins Bates, et al. 2011 as cited in Edited Collections). Also, journal articles that explore the multi-dimensional legal issues raised by terrorism (Cassese 2001, Guillaume 2004).
  8.  
  9. Cassese, Antonio. “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law.” European Journal of International Law 12.5 (2001): 993–1001.
  10. DOI: 10.1093/ejil/12.5.993Save Citation »Export Citation »E-mail Citation »
  11. Reflects on the available legal responses to terrorism in the aftermath of the 9/11 attacks, particularly the question of whether certain terrorist acts may constitute a crime against humanity, as well as the advantages of collective over unilateral action in response to terrorism under the law on the use of force.
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  13. Duffy, Helen. The “War on Terror” and the Framework of International Law. Cambridge, UK: Cambridge University Press, 2005.
  14. DOI: 10.1017/CBO9780511493959Save Citation »Export Citation »E-mail Citation »
  15. This largely descriptive book covers the principal international legal frameworks that apply to terrorism and counter-terrorist responses, with an emphasis on post-9/11 practice. It includes coverage of issues of state responsibility, the law on the use of force, international humanitarian law, UN responses, human rights law, and remedies.
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  17. Guillaume, Gilbert. “Terrorism and International Law.” International and Comparative Law Quarterly 53.3 (2004): 537–548.
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  19. Charting evolving understandings of terrorism over time, including in 20th-century anti-terrorism treaties, this article considers the possible elements of a definition of terrorism. It concludes that no universal definition exists and suggests how states may use the law of state responsibility and the law of use of force to combat terrorism.
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  21. Higgins, Rosalyn. “The General International Law of Terrorism.” In Terrorism and International Law. Edited by Rosalyn Higgins and M. Flory, 13. London: Routledge, 1997.
  22. DOI: 10.4324/9780203429365Save Citation »Export Citation »E-mail Citation »
  23. Among the most influential jurisprudential analyses of terrorism and international law prior to 9/11. It argues that terrorism has usually been dealt with by recourse to general norms and institutions of international law, without a demonstrable need for new terrorism-specific rules or responses—despite efforts to define it.
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  25. Moeckli, Daniel “The Emergence of Terrorism as a Distinct Category of International Law.” Texas International Law Journal 44.2 (2008): 157–183.
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  27. Asserts that a “special regime” of punitive international anti-terrorism law emerged after 9/11, principally due to political pressure from powerful states. The focus is more on the reasons for its emergence rather than on establishing its existence or what constitutes a “special regime.”
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  29. Saul, Ben. “The Emerging International Law of Terrorism.” Indian Yearbook of International Law and Policy (2009): 163–192.
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  31. Argues that there is no coherent “international law of terrorism.” Rather, there exists a plurality of responses: method-specific rules; new international law against terrorist financing; emerging general criminal rules; and the clarification of general norms in the law on the use of force, humanitarian law, and human rights.
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  33. Edited Collections
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  35. Numerous edited collections have sought to draw together the disparate international law issues raised by the problem of terrorism, though their quality has been highly varied. One of the most significant collections prior to the terrorist attacks of 11 September 2001 was Higgins and Flory 1997 because of its distinguished authors, the breadth of issues addressed, and the important conceptual and jurisprudential contribution made by Rosalyn Higgins in her own chapter. Since 2001 collections have proliferated, some focusing on the wide range of contemporary legal issues involved in counter-terrorism measures (Bianchi and Naqvi 2004; Walter, et al. 2004): some take more of a comparative law approach (Ramraj, et al. 2005), and others have a more overt reformist agenda (Stubbins Bates, et al. 2011).
  36.  
  37. Bianchi, A., and Y. Naqvi, eds. Enforcing International Law Norms against Terrorism. Oxford: Hart, 2004.
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  39. Leading writers consider the role and adequacy of international laws addressing terrorism, including the laws of armed conflict, state responsibility, transnational criminal cooperation and jurisdiction, UN Security Council measures, laws governing extraterritorial operations and detentions, anti-financing laws, and human rights law. Certain regional and national law responses are also examined.
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  41. Higgins, Rosalyn, and M. Flory, eds. Terrorism and International Law. London: Routledge, 1997.
  42. DOI: 10.4324/9780203429365Save Citation »Export Citation »E-mail Citation »
  43. One of the most significant works in the field prior to 9/11 that explores how general international law deals with the problems raised by terrorism. It addresses issues of transnational criminal cooperation, state responsibility, human rights, problems of definition and extradition, and regional and national responses.
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  45. Ramraj, Victor, Michael Hor, and K. Roach, eds. Global Anti-Terrorism Law and Policy. Cambridge, UK: Cambridge University Press, 2005.
  46. DOI: 10.1017/CBO9780511493874Save Citation »Export Citation »E-mail Citation »
  47. Investigates the complex legal responses to terrorism, which involve domestic, regional, and international law, as well as different intersecting substantive legal regimes (including the law of war, financial law, maritime and aviation law, immigration law, and criminal law and public law). Also focuses on certain states or regions.
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  49. Stubbins Bates, Elizabeth, Goldstone, R., E. Cotran, G. de Vries, J. Hall, J. Mendez, and J. Rehman. Terrorism and International Law Accountability, Remedies, and Reform: A Report of the International Bar Association (IBA) Task Force on Terrorism. New York: Oxford University Press, 2011.
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  51. Examines the application of specialized branches of law in responding to terrorism, in light of the practice of states and regional and international organizations, and case law. It presents recommendations from the IBA Task Force for respecting human rights and the rule of law in countering terrorism.
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  53. Walter, C., S. Vöneky, V. Röben, and F. Schorkopf, eds. Terrorism as a Challenge for National and International Law: Security versus Liberty. New York: Springer, 2004.
  54. DOI: 10.1007/978-3-642-18896-1Save Citation »Export Citation »E-mail Citation »
  55. Through a series of country reports, this book explores legal issues arising from military and non-military responses to terrorism. Issues investigated include the definition of terrorism, human rights law implications, and law governing military force.
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  57. Source Documents
  58.  
  59. The formal sources of international law specifically addressing terrorism have historically been fairly limited and comprised a dozen or so transnational criminal cooperation treaties, along with a small but growing number of treaties of regional organizations. Most collections include these treaties (Elagab 1997, Saul 2010), and one focuses only on these treaties (Bassiouni 2001). There are also numerous soft law documents that have been reproduced in some collections, particularly from United Nations sources (Bassiouni 2002, Elagab 1997, Saul 2010), but also from a range of other international, regional, and private actors (Saul 2010). Some collections have also drawn upon comparative national materials (Elagab 1997), particularly focusing on United States materials (Lovelace 1979).
  60.  
  61. Bassiouni, M. Cherif, ed. International Terrorism: Multilateral Conventions (1937–2001). Ardsley, NY: Transnational, 2001.
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  63. Reproduces multilateral conventions (from the League of Nations, United Nations, and specialized international organizations) and the treaties of key regional organizations (including the Organization of African Unity, League of Arab States, Council of Europe, Organization of American States, and South Asian Regional Convention) concerning terrorism.
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  65. Bassiouni, M. Cherif, ed. International Terrorism: A Compilation of UN Documents (1972–2001). Ardsley, NY: Transnational, 2002.
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  67. Publishes 180 reports and resolutions of the United Nations concerning terrorism between 1972 and mid-2001, arranged thematically and with editorial commentary on their normative value in particular areas.
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  69. Elagab, O., ed. International Law Documents Relating to Terrorism. London: Cavendish, 1997.
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  71. Publishes basic documents on terrorism including the main treaties and selected UN resolutions, judicial decisions, and some national laws (such as from the United Kingdom), with commentary on their history and normative significance.
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  73. Lovelace, Douglas, ed. Terrorism: Documents of International and Local Control. 104 vols. Oxford: Oxford University Press, 1979.
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  75. Contains extensive primary documentation of significant international and domestic legal materials, as well as other relevant sources (such as government documents), with a particular emphasis on United States practice. It also documents key terrorist incidents.
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  77. Saul, Ben, ed. Terrorism: Documents in International Law. Oxford: Hart, 2010.
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  79. Comprehensively reproduces key primary materials concerning terrorism and international law, including international and regional treaties; resolutions of the UN General Assembly, Security Council, and human rights bodies; and documents of international and regional organizations. It pays special attention to the diversity of actors and “soft law.”
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  81. Legal Definition
  82.  
  83. How to legally define terrorism and agreement on the legal purposes that define it have been among the most conceptually and technically difficult legal questions in confronting terrorism. Some authors query the utility of defining terrorism at all (Baxter 1974); others urge definition for various purposes (Saul 2006); some interrogate competing approaches to definition (Levitt 1986); and yet others claim that a definition has already crystallized as customary international law (Cassese 2006).
  84.  
  85. Baxter, R. R. “A Skeptical Look at the Concept of Terrorism.” Akron Law Review 7 (1974): 380–387.
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  87. Laments that the term “terrorism” has become ubiquitous yet remains ambiguous and serves no legal purpose. A simple definition of terrorism is suggested, as the deliberate killing of civilians in armed conflict.
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  89. Cassese, Antonio. “The Multifaceted Notion of Terrorism in International Criminal Law.” Journal of International Criminal Justice 4.5 (2006): 933–958.
  90. DOI: 10.1093/jicj/mql074Save Citation »Export Citation »E-mail Citation »
  91. Disputes the conventional view that there is no accepted legal definition of terrorism and argues that there exists a customary international law crime of transnational terrorism in peacetime, with disagreement remaining over whether such crime also applies in armed conflict.
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  93. Levitt, Geoffrey. “Is Terrorism Worth Defining?” Ohio Northern University Law Review 13 (1986): 97.
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  95. Describes the search for a definition of terrorism as being as difficult as the quest for the Holy Grail. Compares and contrasts the strengths and weaknesses of two dominant approaches to definition: first, the analytical, generic, top-down, deductive approach; and second, the narrow, self-contained, ground-up, inductive approach.
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  97. Saul, Ben. Defining Terrorism in International Law. Oxford: Oxford University Press, 2006.
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  99. This is the first book to examine the many failed attempts by the international community to define and criminalize terrorism, which is not yet defined as law, including controversies about “freedom fighters” and “state terrorism.” It examines why and how to define terrorism and justifiable exceptions for legitimate political violence.
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  101. International and Transnational Criminal Law
  102.  
  103. Terrorism had presented problems in national extradition law since the 19th century, particularly regarding the vexed problem of the scope of the political offense exception to an extradition request, the protection of political asylum, and the problem of impunity for criminal fugitives (Van den Wyngaert 1989). The earliest truly international efforts to deal with terrorism as a transnational legal problem, however, came in the League of Nations in the mid-1930s. After the assassination of King Alexander of Yugoslavia in 1934, negotiations between 1934 and 1937 produced a treaty requiring the domestic criminalization of terrorism and another treaty creating an international criminal court to prosecute it (Marston 2002). Neither treaty ever entered into force, given the dissolution of the League of Nations in the 1940s.
  104.  
  105. Marston, Geoffrey. “Early Attempts to Suppress Terrorism: The Terrorism and International Criminal Court Conventions of 1937.” British Yearbook of International Law 73 (2002): 293–313.
  106. DOI: 10.1093/bybil/73.1.293Save Citation »Export Citation »E-mail Citation »
  107. Reviews efforts within the League of Nations in the 1930s, following the assassination of senior European political leaders, to respond to terrorism, including by considering the drafting and conclusion of an international treaty to criminalize terrorism and a further treaty for an international criminal court to prosecute said terrorism.
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  109. Van den Wyngaert, Christine. “The Political Offence Exception to Extradition: How to Plug the ‘Terrorists’ Loophole’ without Departing from Fundamental Human Rights.” Israel Yearbook of Human Rights 19 (1989): 297–316.
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  111. Discusses the problem of the political offense exception to extradition and the related “exception to the exception” for certain atrocious or indiscriminate acts of violence against political leaders or civilians. It illuminates the difficulties involved in depoliticizing some political violence and the human rights impacts involved.
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  113. Substantive Crimes
  114.  
  115. Terrorism has been dealt with by resorting to numerous treaties that define certain offenses and require the state to “prosecute or extradite” offenders (Bassiouni 2002, Gioia 2006, Witten 1998), or by treating it as other international crimes such as crimes against humanity (Di Filippo 2008). In addition, there have been various unsuccessful efforts to define terrorism generally for the purpose of creating an international crime (Hmoud 2006). It has also been suggested that transnational terrorism in peacetime has crystallized as a customary international law crime (UN Special Tribunal for Lebanon 2011), although that claim is strongly contested as not based in prevailing state practice (Saul 2011).
  116.  
  117. Bassiouni, M. Cherif. “Legal Control of International Terrorism: A Policy-Oriented Assessment.” Harvard International Law Journal 43 (2002): 83–103.
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  119. Examines the scope and enforcement of international law addressing terrorism, particularly regarding transnational criminal cooperation and within the context of the regulation of transnational crime more broadly. It also explores problems of the definition of terrorism.
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  121. Di Filippo, Marcello. “Terrorist Crimes and International Cooperation: Critical Remarks on the Definition and Inclusion of Terrorism in the Category of International Crimes.” European Journal of International Law 19.3 (2008): 533–570.
  122. DOI: 10.1093/ejil/chn027Save Citation »Export Citation »E-mail Citation »
  123. Clarifies analytical confusion between the empirical descriptions of terrorism and the criminal law response to it and offers a definition of terrorism that encompasses the protection of civilians against organized group violence. It considers options for treating terrorism as a crime against humanity or as an emerging distinct international crime.
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  125. Gioia, A. “The UN Conventions on the Prevention and Suppression of International Terrorism.” In International Cooperation in Counter-terrorism: The United Nations and Regional Organizations in the Fight Against Terrorism. Edited by Guiseppe Nesi, 3–24. Aldershot, UK: Ashgate, 2006.
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  127. Provides an overview of the international community’s approach to regulating terrorism through “sectoral” treaties targeting the specific means and methods of terrorism, while avoiding a general definition of it. Also explores efforts to forge a general definition and a treaty addressing terrorism.
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  129. Hmoud, Mahmoud. “Negotiating the Draft Comprehensive Convention on International Terrorism: Major Bones of Contention.” Journal of International Criminal Justice 4.5 (2006): 1031–1043.
  130. DOI: 10.1093/jicj/mql081Save Citation »Export Citation »E-mail Citation »
  131. Reviews the key controversies in the deadlocked drafting of a general international treaty against terrorism as such, including its coverage of violence in armed conflicts, exceptions for state military forces in peacetime, and the relationship of any such treaty to international humanitarian law.
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  133. Saul, Ben. “Legislating from a Radical Hague: The UN Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism.” Leiden Journal of International Law 24.11 (2011): 677–700.
  134. DOI: 10.1017/S0922156511000203Save Citation »Export Citation »E-mail Citation »
  135. The UN Special Tribunal for Lebanon’s declaration of a customary international law crime of transnational terrorism in 2011 was incorrect because all the sources of custom relied upon by the Appeals Chamber were misinterpreted, exaggerated, or erroneously applied—threatening the human rights of suspects.
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  137. United Nations Special Tribunal for Lebanon. (Appeals Chamber), Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I, 16 February 2011.
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  139. This decision found that there exists a customary international law crime of transnational terrorism in peacetime, defined as a criminal act intended to spread fear among the population or to coerce a national or international authority to act or refrain from acting. Such crime qualifies the application of Lebanese law.
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  141. Witten, Samuel M. “The International Convention for the Suppression of Terrorist Bombings.” American Journal of International Law 92 (1998): 774–781.
  142. DOI: 10.2307/2998146Save Citation »Export Citation »E-mail Citation »
  143. Fills an important gap in international law by expanding the legal framework for states to cooperate in the investigation, prosecution, and extradition of persons who engage in such international terrorism. While generally patterned after prior counterterrorism conventions, the convention contains several important innovations.
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  145. Criminal Courts
  146.  
  147. There is significant debate about which jurisdictions are appropriate for prosecuting transnational terrorism. While the International Criminal Court is not mandated to exercise jurisdiction over terrorism per se, the advantages and disadvantages of conferring jurisdiction upon it have been discussed (Goldstone and Simpson 2003). Within national legal systems there is also debate about whether civilian courts, regular courts martial, or irregular military commissions are best placed to deal with terrorism (Vagts 2003), particularly as regards the procedural problems it raises.
  148.  
  149. Goldstone, Richard J., and Janine Simpson. “Evaluating the Role of the International Criminal Court as a Legal Response to Terrorism.” Harvard Human Rights Journal 16 (2003): 13–26.
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  151. Discusses the potential role of the International Criminal Court in prosecuting terrorism, including in relation to prospects in other forums. It considers terrorism as falling under various international crimes, as well as the challenges of terrorism-related prosecutions.
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  153. Vagts, Detlef F. “Which Courts Should Try Persons Accused of Terrorism?” European Journal of International Law 14.2 (2003): 313–326.
  154. DOI: 10.1093/ejil/14.2.313Save Citation »Export Citation »E-mail Citation »
  155. Discusses the relative advantages and disadvantages of the criminal prosecution of suspected terrorists before regular US civilian courts, special military tribunals, foreign courts, or international tribunals. Deals with issues of security and classified information, jurisdictional, and legitimacy problems.
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  157. International Humanitarian Law
  158.  
  159. The most comprehensive general overview of the relationship between terrorism and international humanitarian law is Bianchi and Naqvi 2011, while an edited collection (Heere 2003) and article (Sassòli 2006) also explore selected aspects of the relationship. The substantive legal prohibitions on terrorism and terror-like acts in armed conflict are examined by Gasser 2002, while the conceptual and practical difficulties of asymmetric warfare are considered by Pfanner 2005.
  160.  
  161. Bianchi, A., and Y. Naqvi. International Humanitarian Law and Terrorism. Oxford: Hart, 2011.
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  163. Examines the controversies concerning the application, interpretation, and adequacy of international humanitarian law in confronting terrorism, including on key issues such as the classification of conflicts and actors, detention, and prosecution.
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  165. Gasser, Hans-Peter. “Acts of Terror, ‘Terrorism’ and International Humanitarian Law.” International Review of the Red Cross 84.847 (2002): 547–570.
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  167. Details the general and specific prohibitions on terrorist acts under international humanitarian law, explaining that the perpetrators may be prosecuted for certain war crimes, while emphasizing that terrorist suspects are entitled to due process.
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  169. Heere, W., ed. Terrorism and the Military: International Legal Implications. The Hague: Asser, 2003.
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  171. This book of conference proceedings considers the intersection of different legal regimes governing military operations against terrorism. It raises issues concerning international law on the use of force, international humanitarian law, and international criminal law. Syntheses and conclusions from the conference are also drawn.
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  173. Pfanner, Toni. “Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action.” International Review of the Red Cross 87.857 (2005): 149–174.
  174. DOI: 10.1017/S1816383100181238Save Citation »Export Citation »E-mail Citation »
  175. Identifies the asymmetry between parties to conflicts in the War on Terror, positing that this contributes to non-compliance with existing and new laws of armed conflict. Also exhorts humanitarian organizations to retain impartiality in providing assistance to victims of armed conflict, despite the escalation in violence targeting humanitarian organizations.
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  177. Sassòli, Marco. “Terrorism and War.” Journal of International Criminal Justice 4.5 (2006): 959–981.
  178. DOI: 10.1093/jicj/mql076Save Citation »Export Citation »E-mail Citation »
  179. Examines the classification of terrorism as armed conflict, legal prohibitions on terrorism in conflict, and the treatment of suspected terrorists. It suggests that state conduct in armed conflict should be excluded from the definition of terrorism and that peacetime terrorism could be defined by reference to wartime prohibitions.
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  181. Classification of Conflicts
  182.  
  183. Whether terrorist violence can sometimes comprise “armed conflict,” and its classification as international or non-international armed conflict, has given rise to much legal controversy (Jinks 2005, McDonald 2007, Sassòli 2006, cited under International Humanitarian Law) and even generated claims of a need to create a new hybrid category of “transnational” conflict (Corn 2007). The difficulties are most acute where violence exists between a state and a non-state actor located on the territory of another state where the host state does not control the activities of the non-state actor. It is then controversial whether such conflict should be classified as international or non-international. There are also difficulties in determining what degree of control must be exercised by a state before it can be said that the state controls a non-state group, so as to create an international armed conflict between two states.
  184.  
  185. Corn, Geoffrey S. “Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict.” Vanderbilt Journal of Transnational Law 40.2 (2007): 295.
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  187. Assesses the difficulties in characterizing conflicts in the “War on Terror” as either international or non-international, asserting the need to recognize a hybrid category (“transnational armed conflict”). Explains the Hamdan v. Rumsfeld case (2006), but argues that it did not resolve all of the legal ambiguities.
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  189. Jinks, Derek. “Applicability of the Geneva Conventions to the Global War on Terrorism.” Virginia Journal of International Law 46 (2005): 165–188.
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  191. Considers whether the War on Terror constitutes an armed conflict activating the application of the Geneva Conventions. Concludes that the conventions do govern some aspects of the hostilities, despite the participation of non-state actors who do not wholly accept international humanitarian law.
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  193. McDonald, Avril. “Declarations of War and Belligerent Parties: International Law Governing Hostilities between States and Transnational Terrorist Networks.” Netherlands International Law Review 54.2 (2007): 279–314.
  194. DOI: 10.1017/S0165070X07002793Save Citation »Export Citation »E-mail Citation »
  195. Argues that the 11 September 2001 terrorist attacks on the United States may constitute an armed attack under the jus ad bellum, but there may be no armed conflict mentioned under the jus in bello so that the United States may be able to use force outside of international humanitarian law.
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  197. Classification of Actors
  198.  
  199. The status and classification of individual “terrorists” or members of terrorist groups has given rise to much legal controversy (Aldrich 2002, Callen 2004, Chadwick 1996, Detter 2007, Dörmann 2003, Yoo and Ho 2003). The issue is inextricably linked to the issue above of the classification of the conflict itself. While such controversies have been particularly acute in conflicts in Afghanistan after 2001, Iraq after 2003, and in Palestine, these debates are often variations of old themes given that guerrilla, civilian, liberation, or insurgent violence has been part of legal discourse since the 19th century.
  200.  
  201. Aldrich, George H. “The Taliban, Al Qaeda, and the Determination of Illegal Combatants.” American Journal of International Law 96 (2002): 891–898.
  202. DOI: 10.2307/3070684Save Citation »Export Citation »E-mail Citation »
  203. Criticizes the decision of the US Bush administration to deny prisoner-of-war status to detainees suspected of being members of Al Qaeda or the Taliban. Explains and rebuts possible rationales for this policy, emphasizing that the administration should at least publicize the case for its legality.
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  205. Callen, Jason W. “Unlawful Combatants and the Geneva Conventions.” Virginia Journal of International Law 44 (2004): 1025–1072.
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  207. Provides an in-depth analysis of the drafting of the Third and Fourth Geneva Conventions to assess whether they apply to those characterized as “unlawful combatants” in the War on Terror. Concludes that unlawful combatants captured on the battlefield are not entitled to protection under either convention.
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  209. Chadwick, E. Self-Determination, Terrorism and the International Law of Armed Conflict. The Hague: Martinus Nijhoff, 1996.
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  211. Examines the challenges of establishing an international definition of terrorism given the ambiguous distinction between acts of terrorism and legitimate acts of self-determination violence. Argues for more consistent prosecution of perpetrators of illicit violence during self-determination conflicts, contending that this would facilitate agreement on a general definition of terrorism.
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  213. Detter, Ingrid. “The Law of War and Illegal Combatants.” George Washington Law Review 75 (2007): 1049–1104.
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  215. Following a descriptive overview of categories of persons that are protected and unprotected under international humanitarian law, this article considers how terrorists should be characterized, especially in light of the Hamdan v. Rumsfeld decision.
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  217. Dörmann, Knut. “The Legal Situation of ‘Unlawful/Unprivileged Combatants.’” International Review of the Red Cross 85 (2003): 45–74.
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  219. Examines the protections accorded to “unlawful combatants” under international humanitarian law, noting the difficulties of classification under both the Third and Fourth Geneva Conventions.
  220. Find this resource:
  221. Yoo, John, and James C. Ho. “The Status of Terrorists.” Virginia Journal of International Law 44 (2003): 207–228.
  222. Save Citation »Export Citation »E-mail Citation »
  223. Argues that the 9/11 attacks were of sufficient intensity to trigger an armed conflict that activated the laws of war and authorized use of force in response. Also argues that Al Qaeda and Taliban forces are unlawful combatants not entitled to prisoner-of-war status.
  224. Find this resource:
  225. Detention
  226.  
  227. Flowing from the legal questions of classifying conflicts and actors are the scope and limits and legal powers to detain “terrorists” in armed conflict, whether under administrative detention powers or for the purposes of criminal prosecution (Goodman 2009, Hakimi 2007). The issues are particularly unsettled in the context of non-international conflicts in the territory of a second state, the duration of detention, and the relationship between administrative detention and criminal process. The question of the complementary application of international human rights law also arises, including its extraterritorial aspect, the minimum conditions of detention, and the lawfulness of transferring detainees into the custody of other states.
  228.  
  229. Goodman, Ryan. “The Detention of Civilians in Armed Conflict.” American Journal of International Law 103 (2009): 48–74.
  230. DOI: 10.2307/20456721Save Citation »Export Citation »E-mail Citation »
  231. Interrogates the legality of the United States’ detention of civilians who directly participate in hostilities and those who otherwise pose a security threat. Distinguishes between the different coercive methods (including detention and prosecution) that may legitimately be exercised against these different categories of civilians.
  232. Find this resource:
  233. Hakimi, Monica. “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.” Case Western Reserve Journal of International Law 40 (2007): 593–650.
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  235. Argues that there are deficiencies in allowing either international humanitarian law or international criminal law to exclusively govern the detention of terrorist suspects. While favoring administrative (and preventive) detention as an alternative, also expresses concern at the underdeveloped human rights standards constraining such detention.
  236. Find this resource:
  237. Prosecution and Trial
  238.  
  239. Whether special criminal offenses, trial procedures, and courts should govern the prosecution of terrorists, and how far regular processes can or should be modified, is the subject of much controversy (Fitzpatrick 2002, Fletcher 2007, Mundis 2002, Stewart 2007, Wedgwood 2002). The compatibility of special processes with international humanitarian law and international human rights law is also an issue.
  240.  
  241. Fitzpatrick, Joan. “Jurisdiction of Military Commissions and the Ambiguous War on Terrorism.” American Journal of International Law 96 (2002): 345–354.
  242. DOI: 10.2307/2693929Save Citation »Export Citation »E-mail Citation »
  243. Offers a critique of the United States’ offshore detention and prosecution in military commissions of individuals suspected of supporting terrorist organizations. Argues that these practices comply with neither international humanitarian law nor the derogation requirements of human rights law and violate the prohibition on conducting law enforcement in another state’s territory.
  244. Find this resource:
  245. Fletcher, George P. “On the Crimes Subject to Prosecution in Military Commissions.” Journal of International Criminal Justice 5 (2007): 39–47.
  246. DOI: 10.1093/jicj/mql101Save Citation »Export Citation »E-mail Citation »
  247. Identifies legal shortcomings in the enlarged mandate of the US Congress’ military commissions, including substantive offenses purportedly arising under the “law of nations,” procedures, equal protection, and sentencing.
  248. Find this resource:
  249. Mundis, Daryl A. “The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts.” American Journal of International Law 96 (2002): 320–328.
  250. DOI: 10.2307/2693926Save Citation »Export Citation »E-mail Citation »
  251. Provides a comprehensive description of the domestic procedures that established the military commissions used by the United States to prosecute suspected terrorists at Guantanamo Bay. Mentions some key international legal issues arising from these procedures.
  252. Find this resource:
  253. Stewart, James G. “The Military Commissions Act’s Inconsistency with the Geneva Conventions: An Overview.” Journal of International Criminal Justice 5 (2007): 26–38.
  254. DOI: 10.1093/jicj/mql096Save Citation »Export Citation »E-mail Citation »
  255. Critiques the United States’ military commissions as inconsistent with international humanitarian law, particularly regarding the classification of “unlawful combatants,” lack of due process guarantees and judicial review, and inhumane treatment of detainees.
  256. Find this resource:
  257. Wedgwood, Ruth. “Al Qaeda, Terrorism, and Military Commissions.” American Journal of International Law 96 (2002): 328–337.
  258. DOI: 10.2307/2693927Save Citation »Export Citation »E-mail Citation »
  259. A discursive overview of the possible means by which the United States could prosecute suspected terrorists, providing several hurdles in federal and international criminal trials that render military commissions an expedient alternative. Argues that military commissions are not inconsistent with international law.
  260. Find this resource:
  261. Targeted Killings/Assassination/Direct Participation in Hostilities
  262.  
  263. While there are no special rules for killing “terrorists,” there is a range of views on the proper interpretation of the legal tests for identifying members of armed groups, as well as for dealing with civilians taking a direct role in hostilities (Ben-Naftali and Michaeli 2003, Melzer 2009, Kretzmer 2005, Melzer 2008). These issues have been the subject of national military practice, national judicial decisions, and efforts by the International Committee of the Red Cross to establish international guidelines.
  264.  
  265. Ben-Naftali, Orna, and Keren R. Michaeli. “We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings.” Cornell International Law Journal 36 (2003): 233–292.
  266. Save Citation »Export Citation »E-mail Citation »
  267. Systematic analysis of targeted killings by Israel in light of international humanitarian law, human rights law, and criminal law. Considers the legality of the policy by disaggregating the targets according to civilian, combatant, or other protected status.
  268. Find this resource:
  269. Kretzmer, David. “Target Killings of Suspected Terrorists.” European Journal of International Law 16 (2005): 171–212.
  270. Save Citation »Export Citation »E-mail Citation »
  271. Argues that targeted killings of suspected terrorists are consistent with international humanitarian law only if terrorists are regarded as combatants; targeted killings of terrorists are only allowable under human rights law if an imminent attack cannot be prevented by any other means. Applies a hybrid of these two legal regimes to Israeli and American targeted killings.
  272. Find this resource:
  273. Melzer, Nils. Targeted Killing in International Law. Oxford: Oxford University Press, 2008.
  274. DOI: 10.1093/acprof:oso/9780199533169.001.0001Save Citation »Export Citation »E-mail Citation »
  275. Comprehensive analysis of the legality of state-sponsored targeted killings under international humanitarian and human rights law. Considers the increasing legitimization and controversies of targeted killings during the War on Terror and whether a new, specific paradigm is required to deal with such killings in the course of extraterritorial counter-terrorism operations.
  276. Find this resource:
  277. Melzer, Nils. Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Geneva: International Committee of the Red Cross, 2009.
  278. Save Citation »Export Citation »E-mail Citation »
  279. Product of a process of consulting experts between 2003 and 2008 and adopted by the International Committee of the Red Cross Assembly on 26 February 2009. Provides background and recommendations on the question of when civilians can be said to have “directly participated” in hostilities, including determining whether they are members of terrorist organizations or other armed groups.
  280. Find this resource:
  281. Use of Force
  282.  
  283. Terrorism has given rise to a cluster of legal problems under the international law on the use of force, including whether terrorist acts can constitute an “armed attack,” the scope of self-defense against autonomous non-state actors (specifically in foreign territory), and the legal responsibility of other states concerning various degrees of support to terrorist organizations (Franck 2001, Byers 2002, Williamson 2009). It has also stimulated debates about the availability of preemptive or anticipatory self-defense against terrorist actors (Bothe 2003, Sofaer 2003), the role of collective security (Charney 2001), and the alternative approach of using the criminal law (Drumbl 2002).
  284.  
  285. Bothe, Michael. “Terrorism and the Legality of Pre-emptive Force.” European Journal of International Law 14 (2003): 227–240.
  286. DOI: 10.1093/ejil/14.2.227Save Citation »Export Citation »E-mail Citation »
  287. Argues against expanding the existing customary law right of anticipatory self-defense (against an actual or imminent attack) to encompass a wider right of preemptive self-defense. Preemption is undesirable because of its vagueness and risk of abuse and because the Security Council can respond to other threats.
  288. Find this resource:
  289. Byers, Michael. “Terrorism, the Use of Force and International Law after 11 September.” International and Comparative Law Quarterly 51 (2002): 401–414.
  290. Save Citation »Export Citation »E-mail Citation »
  291. Questions different possible legal bases for using military force against suspected terrorists after the terrorist attacks of 11 September 2001, particularly against Al Qaeda and the Taliban in Afghanistan. Those bases include self-defense, preemptive self-defense, UN Security Council authorization, and humanitarian intervention.
  292. Find this resource:
  293. Charney, Jonathan I. “The Use of Force against Terrorism and International Law.” American Journal of International Law 95 (2001): 835–839.
  294. DOI: 10.2307/2674628Save Citation »Export Citation »E-mail Citation »
  295. Contends that responding to terrorism by collective security through the United Nations is a preferable response to the unilateral use of force by the United States after 9/11. It argues that such an approach is better for the United States’ own security and that it should work within that system.
  296. Find this resource:
  297. Drumbl, Mark A. “Victimhood in our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order.” North Carolina Law Review 81 (2002): 1–113.
  298. Save Citation »Export Citation »E-mail Citation »
  299. Acknowledges that the 9/11 attacks had some dimensions of an armed attack and that defining them as such expanded state responsibility and self-defense and diminished the United Nations’ role in maintaining international security. Argues that the attacks should instead be regarded as criminal and the perpetrators prosecuted in international courts.
  300. Find this resource:
  301. Franck, Thomas M. “Terrorism and the Right of Self-Defense.” American Journal of International Law 95 (2001): 839–843.
  302. DOI: 10.2307/2674629Save Citation »Export Citation »E-mail Citation »
  303. Rebuts key arguments that the use of force against terrorists is unlawful under international law. Specifically, it argues that the law of self-defense permits force to be used against non-state actors after an attack, including on foreign territory, and even where the Security Council has addressed the problem.
  304. Find this resource:
  305. Sofaer, Abraham D. “On the Necessity of Pre-emption.” European Journal of International Law 14 (2003): 209–226.
  306. DOI: 10.1093/ejil/14.2.209Save Citation »Export Citation »E-mail Citation »
  307. Argues for an expansion of what is claimed to be the existing law, namely that there is a right of self-defense against an imminent armed attack. The attenuation of imminence is necessary where a host state is unable or unwilling to prevent attacks or is responsible for them.
  308. Find this resource:
  309. Williamson, Myra. Terrorism, War and International Law: The Legality of the Use of Force against Afghanistan in 2001. Aldershot, UK: Ashgate, 2009.
  310. Save Citation »Export Citation »E-mail Citation »
  311. Challenges the prevailing legal view that the use of force by the United States and others in Afghanistan after 9/11 was legally justified in self-defense. It also explores wider issues concerning the use of force in Iraq and Lebanon and against terrorists and non-state actors generally.
  312. Find this resource:
  313. State Responsibility
  314.  
  315. The law of state responsibility is particularly pertinent to the international regulation of terrorism, both concerning state acts and the attribution of conduct by non-state actors. Such law is relevant in relation to various primary obligations concerning terrorism (Trapp 2011), including in the criminal law, the law on the use of force, and international humanitarian law. Various works consider such issues and the controversies arising over the scope of state responsibility for terrorist acts and the legal consequences of such responsibility (Barnidge 2008, Dupuy 2004, Trapp 2011), or argue for the revision of the law (Becker 2006).
  316.  
  317. Barnidge, Robert. Non-State Actors and Terrorism: Applying the Law of State Responsibility and the Due Diligence Principle. The Hague: TMC Asser, 2008.
  318. Save Citation »Export Citation »E-mail Citation »
  319. Argues that states have an obligation to act with “due diligence” regarding non-state actors that imperil international security, arising out of regional and international counter-terrorism treaties and Security Council Resolutions. It also explores certain theoretical challenges and the relationship between security and human rights.
  320. Find this resource:
  321. Becker, Tal. Terrorism and the State: Rethinking the Rules of State Responsibility. Oxford: Hart, 2006.
  322. Save Citation »Export Citation »E-mail Citation »
  323. Argues that the law of state responsibility is poorly suited to governing the relationship between terrorist organizations and modern states. Advocates a reconfiguration of the law of state responsibility to bolster the prohibition on supporting or tolerating terrorism and the obligation to suppress it.
  324. Find this resource:
  325. Dupuy, P. M. “State Sponsors of Terrorism: Issues of International Responsibility.” In Enforcing International Law Norms against Terrorism. Edited by Andrea Bianchi and Yasmin Naqvi, 3. Oxford: Hart, 2004.
  326. Save Citation »Export Citation »E-mail Citation »
  327. Examines how acts of terrorism may be defined as internationally wrongful and attributed to states. Explores how states subject to terrorist attacks may legally respond using force under the doctrines of self-defense or countermeasures, and considers the rights of states other than those directly attacked.
  328. Find this resource:
  329. Trapp, Kimberley. State Responsibility for International Terrorism. Oxford: Oxford University Press, 2011.
  330. DOI: 10.1093/acprof:oso/9780199592999.001.0001Save Citation »Export Citation »E-mail Citation »
  331. Examines the law of state responsibility in relation to the primary obligations of states against terrorism and interactions with other legal regimes (use of force, self-determination, humanitarian law, trade law, criminal law, and treaty law). Also addresses countermeasures and international judicial jurisdiction, as well as problems and prospects for the law.
  332. Find this resource:
  333. International Human Rights Law
  334.  
  335. Terrorism and counter-terrorism measures raise a host of issues under international human rights law, including the conceptual question whether terrorism violates human rights (Meron 1989, Schorlemer 2003) the scope of restriction or suspension of rights in pursuit of security (Gross and Aoláin 2006, Wilson 2005, Zedner 2005), the extraterritorial application of human rights law, the role of the judiciary (Duffy 2008), and the role of UN human rights bodies (Fitzpatrick 2003).
  336.  
  337. Duffy, Helen. “Human Rights Litigation and the ‘War on Terror.’” International Review of the Red Cross 90 (2008): 573–597.
  338. DOI: 10.1017/S1560775508000126Save Citation »Export Citation »E-mail Citation »
  339. Discusses litigation in various national and regional courts that has challenged excessive counter-terrorism measures, including arbitrary detention, torture and ill-treatment, extraordinary rendition, and various anti-terrorism laws. It also considers cases involving the extraterritorial application of human rights law.
  340. Find this resource:
  341. Fitzpatrick, Joan. “Speaking Law to Power: The Law against Terrorism and Human Rights.” European Journal of International Law 14 (2003): 241–264.
  342. DOI: 10.1093/ejil/14.2.241Save Citation »Export Citation »E-mail Citation »
  343. Discusses the pressures placed on international human rights law in constraining state counter-terrorist responses in the War on Terror. It also scopes possible normative developments affecting human rights, as well as the effects so far. The latter include American unilateralism and the marginalization of UN human rights bodies.
  344. Find this resource:
  345. Gross, Oren, and Fionnuala N. Aoláin. “Terrorism, Emergencies, and International Responses to Contemporary Threats.” In Law in Times of Crisis: Emergency Powers in Theory and Practice. Edited by Oren Gross and Fionnuala N. Aoláin, 365–421. Cambridge, UK: Cambridge University Press, 2006.
  346. DOI: 10.1017/CBO9780511493997.008Save Citation »Export Citation »E-mail Citation »
  347. This chapter explores different theoretical approaches to how law can respond to terrorism and emergencies in light of international legal responses to terrorism after 9/11, human rights law obligations, domestic legal traditions, and the problem of the lack of definition of terrorism.
  348. Find this resource:
  349. Meron, T. “When Do Acts of Terrorism Violate Human Rights?” Israel Year Book of Human Rights 19 (1989): 271–275.
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  351. Considers whether terrorism violates human rights, both at a normative level and as it relates to problems of the legal responsibility of non-state actors.
  352. Find this resource:
  353. Schorlemer, Sabine von. “Human Rights: Substantive and Institutional Implications of the War Against Terrorism.” European Journal of International Law 14 (2003): 265–282.
  354. DOI: 10.1093/ejil/14.2.265Save Citation »Export Citation »E-mail Citation »
  355. Argues that terrorism violates human rights but that technically non-state actors may not necessarily violate such rights; terrorism nonetheless may constitute crimes against humanity. Violations of human rights are a cause of terrorism, and certain state counter-terrorism measures also violate human rights.
  356. Find this resource:
  357. Wilson, Richard, ed. Human Rights in the “War on Terror”. Cambridge, UK: Cambridge University Press, 2005.
  358. DOI: 10.1017/CBO9780511511288Save Citation »Export Citation »E-mail Citation »
  359. The impact of counter-terrorism measures on human rights is explored in this book, as well as arguments that human rights are an obstacle to effective protection against terrorism, or that rights must give way to security. Different responses to terrorism are assessed, including war, law enforcement, and political strategies.
  360. Find this resource:
  361. Zedner, Lucia. “Securing Liberty in the Face of Terror: Reflections from Criminal Justice.” Journal of Law and Society 32 (2005): 507–533.
  362. DOI: 10.1111/j.1467-6478.2005.00336.xSave Citation »Export Citation »E-mail Citation »
  363. Deconstructs the notion of striking a “balance” between collective security and individual liberty in the War on Terror. Advocates a “principled” approach of building structural and procedural safeguards into criminal law channels.
  364. Find this resource:
  365. Specific Human Rights
  366.  
  367. Counter-terrorism practices have touched upon numerous specific human rights, including in regard to the custody, detention, interrogation, torture, or transfer of suspected terrorists (Borelli 2003), non-discrimination (Moeckli 2008), due process (Pati 2009), and incitement and freedom of expression (Ronen 2010), among others.
  368.  
  369. Borelli, Silvia. “Terrorism and Human Rights: Treatment of Terrorist Suspects and Limits on International Cooperation.” Leiden Journal of International Law 16 (2003): 803–820.
  370. DOI: 10.1017/S0922156503001468Save Citation »Export Citation »E-mail Citation »
  371. The forcible abduction of terrorist suspects in foreign territory is argued to infringe international human rights law and the territorial sovereignty of the state in question. Argues for extradition as the preferable means of obtaining custody while respecting human rights standards and notes barriers to extradition to the United States.
  372. Find this resource:
  373. Moeckli, Daniel. Human Rights and Non-discrimination in the “War on Terror”. New York: Oxford University Press, 2008.
  374. DOI: 10.1093/acprof:oso/9780199239801.001.0001Save Citation »Export Citation »E-mail Citation »
  375. Grounded in international human rights law, this book evaluates the impact of anti-terrorism measures in key countries (the United States, United Kingdom, and Germany) on the principle of non-discrimination. The different contexts investigated include including immigration, detention, policing, and criminal trials.
  376. Find this resource:
  377. Pati, Roza. Due Process and International Terrorism. The Hague: Martinus Nijhoff, 2009.
  378. DOI: 10.1163/ej.9789004172388.i-520Save Citation »Export Citation »E-mail Citation »
  379. This detailed work explores due process guarantees under international law and in certain domestic legal orders in counter-terrorism contexts, in both peacetime and in emergency situations. It also reviews the legality of certain domestic practices in the light of international law safeguards.
  380. Find this resource:
  381. Ronen, Yaël. “Incitement to Terrorist Acts under International Law.” Leiden Journal of International Law 23 (2010): 645–674.
  382. DOI: 10.1017/S0922156510000269Save Citation »Export Citation »E-mail Citation »
  383. Supports a wide interpretation of UN Security Council recommendations to states to prohibit and criminalize incitement to terrorism and argues that such an approach would not excessively infringe freedom of expression. It further suggests that incitement to terrorism may sometimes constitute other international crimes.
  384. Find this resource:
  385. Regional and Comparative Human Rights Issues
  386.  
  387. Regional organizations (as in Europe: Warbrick 2004) have particular experiences of countering terrorism within strong regional human rights frameworks and have shaped the scope and limits of acceptable counter-terrorism practices. National and comparative practices concerning human rights in counter-terrorism are also illustrative of certain trends and controversies (Conte 2010).
  388.  
  389. Conte, Alex. Human Rights in the Prevention and Punishment of Terrorism—Commonwealth Approaches: The United Kingdom, Canada, Australia and New Zealand. Berlin: Springer, 2010.
  390. Save Citation »Export Citation »E-mail Citation »
  391. Examines international, regional, and selected national law responses to terrorism and their relationships to human rights frameworks at various levels, including concerning the lawful limitation or suspension of certain rights in responding to terrorism. Criminal law and procedure, detention, control orders, expression, and migration are examined.
  392. Find this resource:
  393. Warbrick, Colin. “The European Response to Terrorism in an Age of Human Rights.” European Journal of International Law 15 (2004): 989–1018.
  394. DOI: 10.1093/ejil/15.5.989Save Citation »Export Citation »E-mail Citation »
  395. Even where modification of the law is necessary to confront terrorism, or where military force is required over a law enforcement response, judicial supervision of the human rights compatibility of such measures is necessary to ensure that interests are adequately balanced and the rule of law is upheld.
  396. Find this resource:
  397. International Refugee Law
  398.  
  399. Scholarly debates concerning terrorism and refugee law have focused on when a person can be excluded from protection as a refugee because of having committed a serious international crime or acts contrary to United Nations purposes or principles (Kälin and Künzli 2000), as well as when a refugee who is a security risk can be returned to a place of persecution or torture (Bruin and Wouters 2003).
  400.  
  401. Bruin, R., and K. Wouters. “Terrorism and the Non-derogability of Non-refoulement.” International Journal of Refugee Law 15 (2003): 5–29.
  402. DOI: 10.1093/ijrl/15.1.5Save Citation »Export Citation »E-mail Citation »
  403. Argues that the forced return of a suspected terrorist to a place of torture is never lawful and that assurances against it may not be sufficient. It also contends that a restrictive approach should be taken toward decisions to return a dangerous refugee to persecution.
  404. Find this resource:
  405. Kälin, Walter, and Jorg Künzli. “Article 1F(b): Freedom Fighters, Terrorists, and the Notion of Serious Political Crimes.” International Journal of Refugee Law 12 (2000): 46.
  406. DOI: 10.1093/ijrl/12.suppl_1.46Save Citation »Export Citation »E-mail Citation »
  407. In approaching the exclusion of refugees from protection under international law, this article argues that it is first necessary to address what violence is permissible under international law (including international humanitarian law). Then it is essential to understand the scope of political offenses in extradition law and practice.
  408. Find this resource:
  409. The International Law of the Sea
  410.  
  411. A number of international treaties have been adopted to enable transnational cooperation against maritime terrorism, or acts endangering life or vessels at sea (Ronzitti 1990, Mellor 2002), in addition to the traditional law against piracy. More recently, informal cooperative measures between like-minded states, such as the Proliferation Security Initiative, have also become significant (Byers 2004).
  412.  
  413. Byers, Michael. “Policing the High Seas: The Proliferation Security Initiative.” American Journal of International Law 98 (2004): 526–545.
  414. DOI: 10.2307/3181643Save Citation »Export Citation »E-mail Citation »
  415. Explores a cooperative strategy of maritime interdiction against certain security threats as developed by a group of states. Argues that the strategy operates within existing national and international law rights but also seeks to develop new law through bilateral and multilateral treaties and potentially generate new customary international law.
  416. Find this resource:
  417. Mellor, Justin S. C. “Missing the Boat: The Legal and Practical Problems of the Prevention of Maritime Terrorism.” American University International Law Review 18 (2002): 341–397.
  418. Save Citation »Export Citation »E-mail Citation »
  419. Examines various aspects of the legal control of maritime terrorism, including defining the scope of the problem, state responsibility for prevention, the international law of the sea, maritime safety conventions, and future developments.
  420. Find this resource:
  421. Ronzitti, Natalino, ed. Maritime Terrorism and International Law. Dordrecht, The Netherlands: Martinus Nijhoff, 1990.
  422. Save Citation »Export Citation »E-mail Citation »
  423. These essays grapple with problems of responsibility for terrorist acts at sea and their differentiation from other unlawful acts (such as piracy), the legal qualification and criminal treatment of hijackers, the scope of the political offense exception to extradition, difficulties of investigation, and the causes of terrorism.
  424. Find this resource:
  425. The United Nations
  426.  
  427. The General Assembly was the main international vehicle for discussing terrorism from the 1970s to the late 1990s. It was initially paralyzed by disagreement during the Cold War, on issues such as how to deal with liberation movements and state violence (Franck and Lockwood 1974), but it had increasingly forged normative consensus by the mid-1990s (Comras 2010, Boulden and Weiss 2004, Nesi 2006). Some transnational criminal cooperation treaties were negotiated through the UN, even if after 2001 its importance waned relative to the rapidly increasing activism of the Security Council.
  428.  
  429. Boulden, Jane, and Thomas Weiss, eds. Terrorism and the UN: Before and After September 11. Bloomington: University of Indiana Press, 2004.
  430. Save Citation »Export Citation »E-mail Citation »
  431. Reviews the response of the United Nations to terrorism over time, including 9/11 and the war in Iraq. Themes include multilateralism versus unilateralism, states’ interests versus human rights, and various roles performed by different bodies within the United Nations, including addressing politics and causes.
  432. Find this resource:
  433. Comras, Victor. Flawed Diplomacy: The United Nations & the War on Terrorism. Potomac, 2010.
  434. Save Citation »Export Citation »E-mail Citation »
  435. Explores the political and institutional difficulties facing the United Nations in responding to terrorism, including through various resolutions and mechanisms of the Security Council and in the General Assembly’s normative work and strategies. The author had previously worked with the Security Council on terrorism issues.
  436. Find this resource:
  437. Franck, Thomas M., and Bert B. Lockwood Jr. “Preliminary Thoughts towards an International Convention on Terrorism.” American Journal of International Law 68 (1974): 69–90.
  438. DOI: 10.2307/2198803Save Citation »Export Citation »E-mail Citation »
  439. Explores the difficulties in the General Assembly in responding to terrorism, particularly concerning definition and remedies. It then focuses on the relevance of the causes of terrorism to its legal regulation, with specific attention to whether just causes are mitigating factors (affecting remedies) or vitiating factors (affecting definition).
  440. Find this resource:
  441. Nesi, Guiseppe, ed. International Cooperation in Counter-terrorism: The United Nations and Regional Organizations in the Fight Against Terrorism. Aldershot, UK: Ashgate, 2006.
  442. Save Citation »Export Citation »E-mail Citation »
  443. Explores international and regional responses to international terrorism, including through the United Nations (particularly the General Assembly and Security Council) and various key regional organizations. Also discusses the impact of terrorism on international human rights law and the law on the use of force.
  444. Find this resource:
  445. Security Council
  446.  
  447. Until the late 1980s, the Security Council was relatively inactive in dealing with terrorism, occasionally condemning particular acts of terrorism, and very occasionally imposing limited sanctions on state sponsors of terrorism (such as Libya, Sudan, or Afghanistan) or on terrorist organizations directly (such as Al Qaeda) (Saul 2005). It also compelled the surrender of criminal suspects in rare cases (as in the Lockerbie incident) (Plachta 2001). After 9/11, the Security Council became far more active (Rostow 2002), imposing a range of normative and procedural obligations on states in respect of terrorism (including to criminalize it, and to prevent its financing) and apparently endorsing military uses of force against terrorist organizations in certain contexts (Rosand 2003, Bianchi 2006). Such activism has stimulated vibrant debates about the scope of the council’s authority and the changing nature of international law-making (Szasz 2002, Hinojosa Martínez 2008), and the potentially adverse human rights impacts of some of the council’s measures (Flynn 2007).
  448.  
  449. Bianchi, Andrea. “Security Council’s Anti-Terrorism Resolutions and their Implementation by Member States: An Overview.” Journal of International Criminal Justice 4 (2006): 1044–1073.
  450. DOI: 10.1093/jicj/mql079Save Citation »Export Citation »E-mail Citation »
  451. Evaluates member states’ implementation of Security Council measures to combat terrorism, including sanctions against individuals and organizations, also considering implications for international criminal law. Particularly notes the inconsistencies between counter-terrorism measures and human rights.
  452. Find this resource:
  453. Flynn, E. J. “The Security Council’s Counter-Terrorism Committee and Human Rights.” Human Rights Law Review 7 (2007): 371–384.
  454. DOI: 10.1093/hrlr/ngm009Save Citation »Export Citation »E-mail Citation »
  455. The UN Security Council’s increasingly detailed substantive and procedural response to terrorism, as a threat to international peace and security, initially paid little attention to human rights concerns. This article examines the gradual shift within the Security Council and its anti-terrorism machinery toward accommodating human rights.
  456. Find this resource:
  457. Hinojosa Martínez, Luis Miguel. “The Legislative Role of the Security Council in its Fight against Terrorism: Legal, Political and Practical Limits.” International and Comparative Law Quarterly 57 (2008): 333–359.
  458. DOI: 10.1017/S0020589308000201Save Citation »Export Citation »E-mail Citation »
  459. Analyzes controversies over whether the Security Council’s anti-terrorism measures are ultra vires (illegal), or are a new form of international lawmaking that overrides state consent. Explores the scope and history of the council’s powers and relevant state practice. Argues that the council has a legislative capacity, but within limits.
  460. Find this resource:
  461. Plachta, Michael. “The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare.” European Journal of International Law 12 (2001): 125–140.
  462. DOI: 10.1093/ejil/12.1.125Save Citation »Export Citation »E-mail Citation »
  463. Considers international efforts, through Security Council sanctions and diplomacy, to seek the extradition or prosecution of suspected bombers of a civilian aircraft. Discusses whether the incident altered the law of transnational criminal cooperation by adding the option of transferring a suspect and using existing options to prosecute or extradite.
  464. Find this resource:
  465. Rosand, Eric. “Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight against Terrorism.” American Journal of International Law 97 (2003): 333–341.
  466. DOI: 10.2307/3100110Save Citation »Export Citation »E-mail Citation »
  467. Describes the work of the Security Council’s Counter-Terrorism Committee in the aftermath of 9/11. It catalogues existing and potential future challenges for the committee, including the absence of a consensus on the meaning of “terrorism.”
  468. Find this resource:
  469. Rostow, Nicholas. “Before and After: The Changed UN Response to Terrorism since September 11th.” Cornell International Law Journal 35 (2002): 475–490.
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  471. Charts the United Nations’ response to terrorist attacks before and since 9/11, focusing especially on the shift from the General Assembly to the Security Council as now being the main organ to deal with terrorism. Details the work of the Counter-Terrorism Committee, established by the Security Council in 2001.
  472. Find this resource:
  473. Saul, Ben. “Definition of ‘Terrorism’ in the UN Security Council: 1985–2004.” Chinese Journal of International Law 4 (2005): 141–166.
  474. DOI: 10.1093/chinesejil/jmi005Save Citation »Export Citation »E-mail Citation »
  475. Sets out the practice of the Security Council in responding to terrorist acts from 1985 onward. It considers the range of approaches adopted and the language used by the council. The article expresses concern over the continuing absence of a universal definition to guide practice.
  476. Find this resource:
  477. Szasz, P aul C. “The Security Council Starts Legislating.” American Journal of International Law 96 (2002): 901–905.
  478. DOI: 10.2307/3070686Save Citation »Export Citation »E-mail Citation »
  479. A concise appraisal of the Security Council’s response to the 9/11 attacks, which included the novel move of calling on states to take certain actions to suppress terrorism. Briefly predicts how this new quasi-legislative role may affect other security issues such as nuclear proliferation.
  480. Find this resource:
  481. Terrorist Financing and International Law
  482.  
  483. The problem of terrorist financing has been confronted through a hybrid combination of measures, including an international treaty (Lavalle 2000), specific and general UN Security Council measures (Banketas 2003), and “soft law” instruments such as recommendations of the Financial Action Task Force (Koh 2006).
  484.  
  485. Bantekas, Ilias. “The International Law of Terrorist Financing.” American Journal of International Law 97 (2003): 315–333.
  486. DOI: 10.2307/3100109Save Citation »Export Citation »E-mail Citation »
  487. Reviews various universal measures adopted (particularly by the Security Council) to identify and suppress the financing of terrorism (including by non-state actors) while enabling financial services to effectively operate. Legal and technological issues are addressed.
  488. Find this resource:
  489. Koh, Jae-myong. Suppressing Terrorist Financing and Money Laundering. Berlin: Springer, 2006.
  490. Save Citation »Export Citation »E-mail Citation »
  491. The various international standards dealing with terrorist financing and related money laundering are reviewed in this book, with a particular focus on international criminal law. It covers treaty norms, Security Council measures, and the work of the Financial Action Task Force, World Bank, and International Monetary Fund.
  492. Find this resource:
  493. Lavalle, Roberto. “The International Convention for the Suppression of the Financing of Terrorism.” Heidelberg Journal of International Law 60 (2000): 491–510.
  494. Save Citation »Export Citation »E-mail Citation »
  495. Critically examines the key treaty dealing with the financing of terrorism, highlighting difficulties of interpretation and application of certain provisions in different national legal systems. Problems of definition, modalities of financing, and transnational cooperation are also raised.
  496. Find this resource:
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