What’s in a word? War, law and counter-terrorism

Abstract

This chapter examines how a war conception impacts and interacts with counterterrorism so as to explore the consequences for law of the choice to view counterterrorism as war, or vice versa. How does the development and implementation of counterterrorism laws and measures differ between countries that view counterterrorism as war and those that take a law enforcement approach, for example? The first section examines three main areas where a war framework — or even the rhetoric of war — has significant consequences: detention, the use of force, and prosecutions. Law is a source of authority and a source of constraint at the same time, and one can see this tension in comparing how war, or the absence of war, impacts counterterrorism laws and policy in these three areas. In addition, the rhetorical effects of definitional choices in portraying “war”, “terrorism”, and “threat” to the public must not be underestimated.The second section of this chapter explores an area that proves equally fruitful in examining the impact of war determinations on counterterrorism activities. Although the overwhelming majority of the academic and policy discourse of the past decade-plus has focused on the United States pursuit of terrorists through military means, one should also consider the decision of several countries to characterize internal conflicts as counterterrorism operations, such as the Russians in Chechnya or the Sri Lankan government against the Tamil Tigers. Re-characterizing war as counterterrorism has significant consequences for the application of the law of armed conflict, the law that governs conduct during wartime, and therefore for the protection of persons and property and the possibilities for the use of international law as a bulwark against overweening governmental power.