Legal Frameworks to Combat Terrorism: An Abundant Inventory of Existing Tools

I want to thank the American Enterprise Institute for having invited me and for being solicitous of the view from the international perspective of humanitarian protection, of which the law of armed conflict and the International Committee of the Red Cross ("ICRC") are related and integral parts. I want to address the big issues suggested by the tide of our panel-"Developing a Legal Framework to Combat Terrorism"-which assumes the need to fill a large void. While there will always be room for tinkering around the margins of any legal framework, the implication that a new one needs to be developed specifically to combat terrorism is doubtful. At the very least, we should be sceptical of the view that the complementary frameworks of criminal law, human rights law, the web of multilateral and bilateral arrangements for interstate cooperation in police work and judicial assistance, and the law of armed conflict fail to provide tools necessary to combat terrorism. Critics of the status quo seem to have honed in on the law of armed conflict-historically referred to as the laws of war and now known as international humanitarian law, or IHL1-as the weak link in this chain. In reality, for many of the same reasons that truth is said to be the first casualty in war, humanitarian law is increasingly misapplied, misinterpreted, misunderstood, and maligned. Let me offer a view on what humanitarian law actually does and does not cover, permit, and prohibit; and in so doing, lay a foundation for understanding why that body of law is worthy of our respect. I propose to divide this discussion into two points. The more obvious one might be entitled, "Apply humanitarian law correctly where it belongs." But the more elusive and, in my mind, more important point is, "Don't assert humanitarian law where it does not belong." I will, therefore, start with point two following a brief introduction to the nature and scope of application of international humanitarian law. I. THE EXISTENCE AND FIELDS OF APPLICATION OF HUMANITARIAN LAW: INTERNATIONAL AND NONINTERNATIONAL ARMED CONFLICT As we know, the world is a complicated place, made no less so by law and lawyers. The collected wisdom of my professional ancestors has, over the course of human history, described (rather than invented-so don't blame the lawyers) a number of constructs by which we govern our affairs: criminal and civil law, domestic and international law, laws of war and laws applicable in peace, etc. These constructs are not alternatives to be chosen at will, like the dishes in alternative columns of a Chinese restaurant menu. Rather, I prefer the analogy of tectonic plates, sometimes bordering upon each other, sometimes overlapping, forever in motion. The existence and applicability of these constructs is not subject to, and their utility should not be made subject to, shifting concepts of momentary taste or convenience. It is unfortunate that I need to defend the very existence of humanitarian law, but there are those who have recently questioned whether such a thing exists. Let me put that question to rest quickly and firmly. Humanitarian law, the law of armed conflict, has existed ever since man first decided against a scorched earth policy or fighting to the death. More recently, it has been codified into international treaties, only the most prominent of which are the Geneva Conventions. It has also been incorporated into domestic laws that, for example, criminalize the prohibitions contained in the Geneva Conventions-thus we have war crimes under national law.2 And it is reflected in the universally acknowledged body of customary law-that which binds states even in the absence of international or domestic codification, and which has been described as what states do out of a sense of legal obligation.3 Humanitarian law envisions and covers two types of armed conflict. The first, international armed conflict, involves the use of armed force between states. …