Questions of Law and Terrorism
1. International Law
Public international law, or international law as it is more commonly known, refers to the body of laws that regulate the interactions among and relations between nations. Increasingly, international law has expanded to include jurisdiction over international governmental organizations such as the United Nations, and non-state actors such as individuals and groups, such as Osama bin Laden or more recently ISIS (Joyner, 2005).
No understanding of international law is complete without first understanding its sources. According to the International Court of Justice (ICJ), the judicial arm of the United Nations, the sources of international law include: (1) international conventions and treaties; (2) international custom or customary international law; (3) general principles of law recognized by civilized nations; and (4) judicial decisions and teachings of the most highly qualified publicists of the various nations (Luban, O’Sullivan & Stewart, 2010). It is important to note that in contrast to the legal systems in many countries where a higher court has binding authority over lower courts, the decisions of the ICJ (and other international tribunals) are normally only binding on the parties to the case and do not have any formal effect as precedent to subsequent litigants or over international law in general (Luban, O’Sullivan & Stewart, 2010).
An international convention or treaty are agreements between or among states where parties to the agreement are obligated to act (or not act) according to the terms of the treaty. Similar a domestic contract, treaties are created as the result of negotiations between states. In contrast to a contract, however, simply signing a final draft to treaty does not make it legally binding. To have legal effect, the treaty must be ratified or formally accepted by the signatory states (Luban, O’Sullivan & Stewart, 2010). Every state has its own unique way of ratifying a treaty. Once ratified, a state becomes a party to a treaty. A treaty is “binding on the party to it and must be performed in good faith” (Luban, O’Sullivan & Stewart, 2010). Accordingly, a state may limit its obligations to a treaty by no becoming a party to it. For example, a state my sign a treaty to show its agreement with the values or requirements stated within the treaty but refuse to ratify the treaty to limit any obligations that the treaty might impose. If a state ratifies a treaty, it normally has “supremacy” over any domestic laws that might conflict with it.
International custom or customary international law refers to a rule, law or custom with binding force on a state because the community of nations treat it and consider it a rule of law. It should be noted that, in contrast to a treaty, customary international law is binding upon all states whether or not it ratifies or agrees with the rule. In order for a rule to be considered customary international law, it must contain the following elements: (1) it is the common practice in a wide number of states; and (2) opinio juris or the states practice the rule because they feel compliance is compulsory (Luban, O’Sullivan & Stewart, 2010). Proving a rule is common practice can be satisfied according to a number of methods including a treaty if a sufficient number of states sign and ratify it. The specific number of states that satisfy a common practice however is open to debate. Opinio juris, on the other hand, requires that the states practicing the rule do so because of a sense of legal obligation, as opposed to convenience. As mentioned, while customary international law is binding on all nations; it can be avoided under certain circumstances. For instance, states can enact treaties or pass laws that specifically deviate from the rule. Alternatively, states can openly, consistently and literately object to the rule. These actions, in essence, eliminate or divest the state from the common practice among states element necessary to show a finding of customary international law.
The third source of international law consists of general principles of law. They consist of rules, laws and provisions common to most in domestic courts and domestic legal systems (Luban, O’Sullivan & Stewart, 2010). For instance, the idea of self-defense is a viable defense for certain crimes (murder or assault) is a basic principle of criminal law that is common in a wide number of states and legal systems across the world
Lastly, the final source of international law includes judicial decisions and the teachings of scholars. These are considered persuasive authority, subsidiary sources of law or research aids used by courts and international lawyers to prove, clarify, or interpret treaties, customary international law or a general principle of law (Luban, O’Sullivan & Stewart, 2010). Judicial decisions refer to the opinions of any international tribunal or domestic court in the world. Teachings refer to the research and writings of “highly qualified” scholars, experts or publicists such as the United Nations’ International Law Commission (Luban, O’Sullivan & Stewart, 2010).
2. Drone Warfare
A drone is a remotely controlled aerial vehicle that has become one the basic battlefield tools of the US armed services. Indeed, over the last two decades, drones have evolved from their humble beginnings as “dumb” machines used for reconnaissance and surveillance to “highly intelligent” assassins used to conduct targeted killings and lethal strikes against terrorists and other enemies of the state (Stanford-NYU, 2013). International humanitarian law or the laws of armed conflict is a subset of international law that defines the legal justifications to engage in war and what is acceptable conduct for belligerents once war has begun (Luban, O’Sullivan & Stewart, 2010). Sources of international humanitarian law include treaties and customary international law. The Geneva Conventions of 1949 form the core of international humanitarian law. One of the key provisions of the Geneva Conventions, and in essence international humanitarian law states that non-combatants are “entitled to respect for their lives” and “shall in all circumstances be protected and treated humanely without any adverse distinction” (Luban, O’Sullivan & Stewart, 2010). Applying this standard to the battlefield use of drones, problems arise when or if a drone attack targets non-combatants or target legitimate assets under the law but results in the harm or injury to civilians or non-combatants that are with or near the target. According to a number of reports, there is “significant evidence that drone strikes have both injured and killed civilians” (Stanford-NYU, 2013). Moreover, it has been reported that drone strikes have led to considerable non-physical injuries such as anxiety and psychological trauma to civilian communities in and around the strike zone (Stanford-NYU, 2013). Consequently, the use of drone strikes is arguably a violation of international humanitarian law.
The use of drones, however, has not just been confined to the battlefield. Indeed in a global war against terror, the US has given itself the authority to strike at terrorist wherever they may be. The use of lethal force outside of an armed conflict zone is governed by international human rights law. Similar to international humanitarian law, international human rights law is a branch of international law which focuses on ensuring the “basic worth and dignity of every human being” (Luban, O’Sullivan & Stewart, 2010). Accordingly, international human rights law is the set of rules which allow individuals and groups to demand certain behaviors and benefits from the government. One of the central tenets of international human rights law is that everyone has a right to life. Moreover, under international human rights law the intentional use of force is only permitted when it is strictly necessary and proportionate (Stanford-NYU, 2013). A person outside of an armed combat zone is generally considered a non-combatant with a fundamental right to life. A targeted killing of that individual would be a violation of his rights under international human rights law in that his right to live was extinguished and his intentional killing without arrest, investigation and prosecution was not necessary and out of proportion.
References
Joyner, C.C. (2005). International Law in the 21stCentury: Rules for Global Governance. Lanham, MD: Rowman & Littlefield Publishers, Inc.
Luban, D., O’Sullivan, J.R., & Stewart, D.P. (2010). International and Transnational Criminal Law. New York, NY: Aspen Publishers.
Stanford - NYU. (2013, Sep.). Living Under Drones: Legal Analysis. Retrieved on December 14, 2014, from http://www.livingunderdrones.org/wp-content/uploads/2013/10/Stanford-NYU-Living-Under-Drones.pdf
