The 'War on Terror' and the Framework of International Law

Vol. 16 No.1 (January 2006), pp.84-86

THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW, by Helen Duffy. New York: Cambridge University Press, 2005. 540pp. Hardback. £60.00/$110.00. ISBN: 0521838509. Paper £29.99/$50.00. ISBN 0521547350.

Reviewed by David Schultz, Graduate School of Management, Hamline University. Email: Dschultz [at] hamline.edu

After the events of 9-11, President Bush had a choice: he could either respond to the terrorist attacks as criminal acts or as acts of war. Were he to have chosen the former, his options could have included using the United Nations, international law, the International Court of Justice, and perhaps even the International Criminal Court as forums and bodies to deal with terrorism, al-Qaeda, and the Taliban.

Bush chose war. In so choosing, he also opted for a set of policy options that would espouse anticipatory military action in the name of self defense. It would yield classification of captured Al-Qaeda and Taliban as “enemy combatants” and therefore not entitled to prisoner of war status under the Geneva Convention Relative to the Treatment of Prisoners of War. He, or rather memoranda drafted for him by John C. Yoo—now at Boalt Hall—and later by the Office of Legal Council, including the infamous “torture memo,” led to the unilateral suspension of the 1994 Convention Against Torture, thereby endorsing the interrogation tactics found at Abu Ghraib. Finally, Bush’s disregard of international humanitarian law resulted in presidential orders prescribing the treatment of detainees at Guantanamo Bay.

In making his choice to respond to the events of 9-11 as acts of war, Bush opted to invoke his executive power and authority as Commander in Chief to interpret international law to his liking. Yet were these interpretations credible? Could the actions that Bush took be read as being consistent with international law? According to Helen Duffy, the answer is a resounding no.

THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW should be read by Yoo, Bush, and others who seem to assert that international law is not binding on the United States and that America can simply disregard it as the country moves forward in its war on terror. Helen Duffy—a human rights specialist, former legal officer for the International Criminal Tribunal for the former Yugoslavia, and past counsel for Human Rights Watch—has authored a magnificent overview of international law as it addresses terrorism. She applies her arguments almost point by point to show the dubious legal stance of the Bush Administration in how it has classified and treated prisoners and engaged in military action. The book offers a great chapter by chapter analysis of international law or conventions, followed by specific application or critique of how well Bush policies stack up against them. [*85]

Part One of the book commences with seeking to understand the concept of “terrorism” under international law. Noting that there are no clear or consistent definitions of terrorism, Duffy indicates that a variety of domestic and international laws, conventions, and norms nonetheless could have been used to label these acts as criminal, and therefore subject to prosecution. Their classification under domestic law could have been murder, ranging to crimes against humanity under international law. In addition, in direct response to claims by the Bush Administration that the war on terror was a new kind of struggle not envisioned by international law – that is, acts of aggression by non-state actors – Duffy provides ample documentation to show how under current law individuals could be held responsible.

Parts Two and Three provide detailed discussion of international human rights, humanitarian, and criminal law, as well as the rules on national self defense. Nowhere, Duffy concludes, did these rules give the United States the unilateral authority to invade Iraq to enforce Security Council resolutions, and they certainly did not justify Bush’s “anticipatory self-defense” strategy for either Iraq or Afghanistan. In reaching these conclusions, the author undertakes a detailed discussion of the circumstances under which a state can be held responsible for individuals, and she also shows how the Bush Administration selectively misread U.N. and Security Council Resolutions to justify its invasion of Iraq to prevent it from harming the United States with its nonexistent weapons of mass destruction.

Where the book really is impressive is in its engagement of humanitarian law and Bush’s misclassification and maltreatment of individuals captured and suspected of being terrorists. Duffy points out that the term “enemy combatant” does not exist in international law. Either one is a captured soldier or a combatant and therefore entitled to prisoner of war status under Geneva Convention III, or one is a civilian and entitled to treatment afforded the protections of the Fourth Geneva Convention. There is no legal limbo under international law – only under Bush’s gloss of it. Finally, Duffy brings her reading of international humanitarian law to an extended analysis of the classification and treatment of detainees at Guantanamo Bay, concluding again that international norms fail to support the United States.

Overall, the conclusions of the book are sobering. While acknowledging the events of 9-11 to be a tragedy, Duffy finds little legal support for the Bush Administration’s efforts to combat the war on terrorism. She notes Bush’s unilateralism and pick-and-choose flavor towards international law, and contends that, overall, it is damaging to the fabric of international cooperation in addressing terrorism. The American approach, as she notes, has already hurt legal prosecution of terrorists in Germany, and it is surely damaging to the prospects of peace and security as well. [*86]

THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW is an important contribution to an understanding of what the war on terror has become and what it could have been had international law been followed.

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