All Bark and No Bite? Rhetoric and Reality in the War on Terror

Author:Roslyn Fuller
Position:INSYTE Research Group, Waterford Institute of Technology
Pages:1-40
SUMMARY

This paper argues that not only has the "war on terror" failed to hinder terrorism, it has also unequivocally failed to have any appreciable impact on the content of international law. The doctrine of the "war on terror" initially mixed together aspects of human rights and humanitarian legal regimes, combining this conflation of systems with a much broadened definition of the term "conflict" and... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2015 e Institute for Migrant Rights Press
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ALL BARK AND NO BITE?
RHETORIC AND REALITY IN THE WAR ON TERROR
ROSLYN FULLER
INSYTE Research Group, Waterford Institute of Technology
E-mail: fullerr@tcd.ie
is paper argues that not only has the “war on terror” failed to hinder
terrorism, it has also unequivocally failed to have any appreciable impact on the
content of international law. e doctrine of the “war on terror” initially mixed
together aspects of human rights and humanitarian legal regimes, combining
this conation of systems with a much broadened denition of the term “conict”
and those who could be viewed as legitimate targets in a conict. However, this
new interpretive framework, put forward mainly by the United States, failed to
gain traction among other States, and even among domestic U.S. government
agencies. irteen years after the War on Terror commenced no cohesive
changes in State practice or opinio juris have occurred which would lead to the
conclusion that the traditional laws of peace and conict have been signicantly
altered on these points. ere was perhaps never, in any legal sense, a global
“war on terror.
Keywords: Humanitarian Law, Customary International Law, Terrorism, Human
Rights Law, Armed Conict, Military Operation.
The Indonesian Journal of International & Comparative Law Volume II Issue 1 (2015) at 1–40
Roslyn Fuller
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I. INTRODUCTION
On September 11, 2001, 19 hijackers took control of four planes in Unit-
ed States’ airspace and intentionally crashed two of them into the World
Trade Centre in New York City.1 Since this tragic event, the United States
has claimed to be engaged in a global conict with certain designated
terrorist organizations, primarily the loose aliation of Islamic militants
known as al-Qaeda.2 Initially, it appeared that this conict would be
waged in, and conned to, the territory of Afghanistan where the Tali-
ban forces which rule most of the country were alleged to have granted a
refuge to al-Qaeda leader Osama bin Laden, and to have allowed him to
plan operations against the United States from their territory.3
However, in the 13 years that have elapsed since the 9/11 hijackings,
the United States has eshed out its strategy and objectives in an ever-
expanding military operation termed the “War on Terror” by government
1. e Associated Press, New York City Shuts Down, N.Y. T, (Sept. 11, 2001),
http://www.nytimes.com/2001/09/11/nyregion/11CND-NYC.html; Glen
Johnson, Probe Reconstructs Horror, Calculated Attacks on Planes, B G
(Nov. 23, 2001), http://www.boston.com/news/packages/underattack/news/
planes_reconstruction.htm.
2. Within ten days of the 9/11 acts, President George W. Bush referred to them as
“an act of war,” before declaring “our war on terror begins with al Qaeda” and that
the US would direct “every necessary weapon of war . . . to the disruption and to
the defeat of the global terror network.” George Bush, U.S. President, Address to
a Joint Session of Congress and the American People, (Sept. 20, 2001), reprinted
in e Guardian, Sept. 21, 2001. is language continued throughout his terms
in oce, see eg. a speech in 2006 reprinted as President Bush’s Speech on Terrorism,
N.Y. T, Sept. 6, 2006, and has been continued by Barack Obama. See e.g.
Susan Garner, Text of President Obama’s Speech on the death of bin Laden, D
K (May 1, 2011), http://www.dailykos.com/story/2011/05/02/972112/-Text-
of-President-Obama-s-speech-on-the-death-of-Bin-Laden (last visited Nov. 1,
2014) (indicating as late as May 2013 that while the war against al-Qaeda could
not continue indenitely, it is still certainly ongoing as of the present time. See
Colleen McCain Nelson, Adam Entous & Julian E. Barnes, Obama Resets War on
Terror, W S. J., May 23, 2013.).
3. See e.g. George Bush, U.S. President, Address to a Joint Session of Congress and
the American People, (Sept. 20, 2001), reprinted in e Guardian (Sept. 21,
2001); Bin Laden Extradition Raised, BBC N (Sept. 12, 2001, 11:57 GMT),
http://news.bbc.co.uk/2/hi/south_asia/1539468.stm; Talking with the Taliban,
T G  M (June 18, 2013, 7:30 PM), http://www.theglobeandmail.
com/globe-debate/editorials/talking-with-the-taliban/article12652866/.
Roslyn Fuller
All Bark and No Bite?: Rhetoric and Reality in the War on Terror
3
leaders.4 In particular, the need to ght acts of terrorism has been
repeatedly used as a justication for adopting an à la carte approach to
two important international law regimes: the regime of human rights,
which takes precedence in peacetime, and the regime of humanitarian law,
which takes precedence in times of armed conict. us, between 2001
and 2008, terrorism was treated by the U.S. government as synonymous
with armed conict in certain respects (e.g. the right to use immediate
force against those designated as terrorists), while in other respects (e.g.
the duty to confer prisoner of war status on captured combatants and to
treat all captives humanely) the rules of armed conict were ignored.5
is approach was problematic, inconsistent and heavily criticized.6 It
cut across the careful, if not always sharply contoured, dierentiations
between conict/peace and international/non-international armed
conict. One of the most problematic ideas put forward was the idea that
a person could not only make themselves guilty of committing acts of
terrorism, but could intrinsically be a terrorist, by virtue of their allegiance
to a terrorist organization, and that the United States and its allies were
in a constant state of war with these innate terrorists, regardless of their
geographical location, or whether their sympathies had yet manifested
themselves in any specic threat.7
4. See supra note 2.
5. For a summary of this convoluted approach to the laws of war, see N.Y. T
(with contribution by Neil A. Lewis), A Guide to the Memos on Torture, N.Y. T,
http://www.nytimes.com/ref/international/24MEMO-GUIDE.html?_r= (last
visited Nov. 1, 2014), especially the Memorandum from White House Counsel
Alberto Gonzalez on the Application of the Geneva Convention on Prisoners
of War to the Conict with al-Qaeda and the Taliban (Jan. 25, 2002), (urging
al-Qaeda and Taliban members not be considered POWs while simultaneously
pointing out the need to try them for war crimes), available at http://www2.gwu.
edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdf (last visited Nov. 1, 2014),
and the Memorandum from Deputy Assistant Attorney-General John Yoo for
William J. Haynes II, General Counsel, Dep’t of Defense (Jan. 9, 2002), available
at http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdf (last
visited Nov. 1, 2014) (stating that none of the international laws of armed conict
applied to al-Qaeda and Taliban members as the conict was neither international
nor non-international in character, due to the “novel nature of the conict.”).
6. See e.g. Joseph Blocher, Combatant Status Review Tribunals: Flawed Answers to the
Wrong Question, 116 Y L. J. 667-74 (2006); Brian J. Foley, Guantanamo and
Beyond: Dangers of Rigging the Rules, 97 J. C. L.  C 1009-69
(2007); Johan Steyn, Guantanamo Bay: e Legal Black Hole, 53 I’  C. L.
Q. 1-15 (2004).
7. Milena Sterio, Drones in the War on Terror: e (Il)legality of Targeted Killings under

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