ICRC

ICRC Washington Deputy Legal Advisor Andrea Harrison wraps up the IHL and Terrorism section of our IHL Challenges series by summarizing the arguments made by our contributors during the last three weeks. Next up will be an exchange of views on new technologies and IHL.

I will begin by thanking all of the contributors to this segment on IHL and Terrorism. Jelena Pejic, Bobby Chesney, Gabor Rona and Ben Saul all provided excellent insights into many of the more problematic aspects of the interaction between the legal regimes of counterterrorism and IHL, and I will address some of their comments below.

We continue our Series and exchange of views on the conflation of armed conflict and terrorism with a guest post by Professor Ben Saul, of the University of Sidney Law School. 

The ICRC’s report on IHL and the challenges of contemporary armed conflict makes three critical points about terrorism. First, existing IHL is reasonably capable of regulating violent methods of war which are commonly described as terrorism. There is thus little apparent benefit from superimposing an additional regime of counter-terrorism law on armed conflict. 

Secondly, the international legal suppression and criminalization of terrorism interferes in incentives under IHL – such as they are – for armed groups to comply with IHL, because if treated as terrorists they have little to lose by violating IHL and gain little by respecting it.

First guest post in the IHL and Terrorism segment of our ongoing series, where Professor Bobby Chesney - of the University of Texas School of Law and a Lawfare editor - responds to an explanation of the ICRC position by our own Jelena Pejic.
Professor Chesney highlights what in his view is the lack of clarity of certain claims made by the ICRC, and offers a complementary interpretation of the legal framework applicable to terrorism.

Has invocation of an armed-conflict model in connection with counterterrorism over the past dozen years resulted in a problematic conflation of applicable legal norms?  Part VI of the Conference Report contends that the answer is yes, on multiple levels.