WAR ON TERRORISM: LEGALLY JUSTIFIABLE OR NOT

Jurnal IUS Kajian Hukum dan Keadilan, 2019

International humanitarian law recognized the classification of population during the war, namely: combatant; hors de combat; non-combatant; and civilians. Civilians is the parties who should be protected from enemy attacks and conversely this classification should not be attacked under any circumstances. In the other side of these classifications, the United States arrested around 200 Afghan children and teenagers on charges of being enemy combatant and detained them at the Detention Facility in Parwan. The act taken by the United States is not recognized in international humanitarian law since terms enemy combatant is not suitable with any other terms in international humanitarian law. The United States arrested children who did not took up arms and were not involved in the war but 'allegedly' involved with terrorist networks and were considered to treated state security. Phrase 'allegedly' refers to subjectivity and hard to describe. This research will discuss how international humanitarian law deal with the United States new terms namely enemy combatant. This study uses statutory approach which examining the laws and regulations concerned with the formulation of the problem discussed. It also uses conceptual approach which moves from the views and doctrines that develop in law to build a legal concept. This study is purpose to analyze legal basis and principles of international customary law related to the concept of enemy combatant as applied unilaterally by the United States to the armed conflict in Afghanistan.

2008

One of the most difficult legal questions generated by the U.S. proclaimed Global War on Terror has been determining when, if at all, the laws of war apply to military operations directed against nonstate actors? This question has produced a multitude of answers from scholars, government officials, military legal experts, and even the Supreme Court of the United States. The only aspect of this question that would likely generate consensus among these diverse viewpoints is that the difficulty of applying a state-centric law triggering paradigm to a dispute that defies state-centric classification has created tremendous legal uncertainty. While from a lay perspective it may seem that resolving such a question is like "dancing on the head of a needle", the resolution has profound consequences for virtually every person involved or impacted by this "war". Since the time of the U.S. military response to the attacks of 9.11, the executive branch has struggled to articu...

2014

As a response to the 9/11 terrorist attacks, the United States have introduced the policy of targeted killings ? targeting individual suspect terrorists and killing them, most often using the unmanned drones operated by the CIA. Likewise, Israel has begun with the same practice, responding thus to the ongoing terrorist threats from the surrounding Muslim-populated areas.An introduction of such killings has raised much controversy over their legality, as well as their moral justification. The core problem lies within the specific nature of the so called ?war on terror? ? the war in which the other party is not accurately defined, the war which is most probably indefinite, since it is not likely that terrorist activities will, in this form or the other, ever completely vanish, and most importantly, the war in which means of struggle against terrorists are not defined at all.The ?war on terror? differs from the war in a traditional sense. It is thus not clear whether terrorist acts sho...

2007

2011

William and Mary Law Review, 2009

Although the conflict formerly known as the "war on terror" is now in its eighth year, key legal issues governing the use of force and military detention remain largely unresolved. These questions survive the Bush administration, as the United States continues to launch aerial strikes against al Qaeda and President Obama has indicated his intention to continue the use of preventative detention and military trials even after Guantánamo is closed. Military victory is not possible, but good faith application of authority from the law of war can effectively complement traditional criminal law in combating the threat. Even if the Geneva Conventions do not formally apply to this conflict, there is a large body of customary international law, including many Geneva rules, that should. If the war is limited to those adversaries authorized by Congress, and the opposition is validly classified under the law of war, the military (but not the CIA) can legally target members of al Qaeda and detain them without requiring a criminal trial. But the conditions of that detention and any trials that are held must meet international standards, which they currently do not. Good faith application of law of war rules also offers better protections for civil liberties than other proposed solutions, such as national security courts, which offer less due process than regular federal trials. Such measures start down a slippery slope of compromising legal standards on the basis of expediency that can be avoided through the faithful application of existing international law.

Politics &amp Policy

Wars challenge the principles, not just the will or resources, of a nation, especially if, as in the case of the United States, those principles include a commitment to the civil rights and liberties of its citizens. In waging its war on terrorism, the Bush Administration has exercised powers of surveillance, detention, and interrogation that critics condemn as unjust violations of some of our most cherished rights and liberties. Administration officials flatly reject the charge. One issue raised by this dispute is the now timeless question, how do we decide when, if ever, concerns for security outweigh those for rights to expression, association, privacy, or due process? The answer lies in the very idea of having and asserting rights. Policies grounded in the idea of rights meet the test of legitimacy; they succeed where those based on Mill's harm principle or Michael Ignatieff's theory of the lesser evil do not. S hortly after September 11, 2001, President George W. Bush declared war on terrorism, committing the United States to extraordinary levels and kinds of both military and political activity. According to Bush and administration officials, fighting terrorism requires, among other things, expanded and less constrained executive power. As Vice President Dick Cheney recently put it, "I believe in a strong, robust executive authority, and I think that the world we live in demands it." Especially during wartime, He concluded that the president "needs to have his constitutional powers unimpaired" (Baker and VandeHei 2005, A01). Now in its fifth year, the war on terror has prompted very sharp increases in the government's powers to surveil (often without a warrant), apprehend, indefinitely detain, and aggressively interrogate (perhaps even torture) any person the administration (not the courts) considers suspicious. This expansion of executive power raises a critical question: do the threats posed by our enemies, terrorists in particular, require as well as justify policies adverse to the rights and liberties of citizens? This issue, once debated only in the halls and classrooms of our universities, now fills broadcasters' airwaves and consumes numerous columns on the front-and op-ed

2009

The term “war on terror” has undoubtedly entered our common usage, notwithstanding heavy criticism that instead of using it as a metaphor, as in the “war on poverty” or the “war on drugs,” terminology which has primarily served a rhetorical purpose, the US views the struggle against al Qaeda and associated terrorist groups and individuals as a real war. Other critics have argued that employing the law of armed conflict is not an effective tool to counter terrorism, urging instead to consider terrorism as primarily a law enforcement problem. Thus, they suggest using the traditional criminal justice system to arrest, prosecute, and punish terrorists if they are found guilty. President George W. Bush directly and unequivocally responded to such critics in his 2004 State of the Union Address to the Congress:

European Journal of International Law, 2008