CT: The Legal Regime

Learning Objectives:
On completion of this unit, you will be able to:
• Identify ways in which international and domestic legal regimes assist and constrain law enforcement
agencies in CT.
• Describe the legal circumstances when military force can be used in CT operations.
• Identify and explain the main international legal controversies in CT.

Required Reading:
International law provides a framework for transnational CT
operations and establishes common standards that apply to
even domestic operations. These standards are based on treaty
law and customary international law. They are grounded in
the UN Charter. Human rights standards are captured in
several conventions, most importantly in the 1966
International Convention on Civil and Political Rights.
Common Article 3 of the Geneva Conventions defines the
operational requirements for domestic operations based on
these standards and provides minimum criteria for the
humane treatment of captured terrorist suspects. Copyright: UN | Source: UN

Law enforcement CT activities are governed primarily by The United Nations Security Council (UNSC) votes on a
resolution.
domestic and human rights law, which limit the use of force.
Military CT operations are covered by the jus in bello, contained in customary and treaty law. The actual decision
to use force against another state or use force on its territory is governed by the jus ad bellum. The latter sets the
criteria for the permissible use of military force in national self defense.
Terrorism is directly addressed by several key UN Security Council Resolutions (UNSCR), most notably Resolution
1373, passed after the 9/11 attacks in 2001. There are sixteen other resolutions which cover a wide range of CT
topics, including terrorism on board aircraft and at sea, nuclear terrorism, and terrorist financing. Finally, the
mechanics of international cooperation are addressed by agreements on extraterritorial jurisdiction, investigative
cooperation, and extradition. Given the increasingly transnational dimension of terrorism, international law
enforcement cooperation has become increasingly important. Cooperation has been facilitated by international
treaties on terrorism that work to strengthen domestic laws and institutions, such as INTERPOL and EUROPOL
which assist affiliated law enforcement agencies. International jurisdiction also provides the legal basis for a
country to apply its domestic legal system to terrorists beyond its borders. When terrorists are apprehended by
another nation, extradition acts between the states involved determine whether and how they may be transferred
to another country for trial and punishment.
International law provides limitations and opportunities for CT operations. The law of armed conflict (jus in bello)
and human rights law set broad limits on action in war and peace, setting minimum standards for the targeting,
apprehension, detention, interrogation, trial, and punishment of terrorists. The law of conflict management (jus ad
bellum) determines when a threat has escalated from a crime requiring a law enforcement solution to an armed
attack that permits a military response. The key to understanding these practical applications of the law is a firm
grounding in the two sources of international law (treaty and custom) and the three applicable legal regimes (law
enforcement, intelligence activity, and military operations).
For most of the 20th Century, terrorism was viewed almost exclusively as a domestic criminal law enforcement matter.
However, as the threat from international terrorism has grown since the 1980s, the legal divide between responses
based on law enforcement and military force has weakened. As recent debates about the use of drones for targeted
killing have illustrated, the legal status of CT operations has become a controversial subject. Inevitably, most legal
debate has focused on the measures implemented by the US during the so called “war on terror.” These measures
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have included the pre-emptive use of force, targeted killings outside of recognized conflict zones, the violation of
state sovereignty during CT operations, and the detention and interrogation of illegal combatants.
The UNSC has acknowledged that international terrorism can pose a serious threat to international peace and
security, which mandates a response under Chapter 7 of the UN Charter. But in practice, the use of military force
in international CT has been justified by the right to self defense under Article 51 of the Charter. This has become
an area of contention as, prior to 9/11, self defense was generally understood to apply to attacks by states, but not
to violence by non-state actors. The US use of self defense as a justification for the employment of military force
against terrorists, when technically there is no armed conflict according to the law of war, has prompted much
criticism. In particular, many lawyers believe that US actions in this respect have tended to disregard international
humanitarian law (IHL) and international human rights law (IHRL). The fact that there is no authoritative legal
definition of an armed conflict has not helped the situation. To date, none of these issues has been satisfactorily
resolved and states such as the US and Israel have been compelled to mount robust legal defenses of their policies
in the face of international disapproval. For example, the United Nations Human Rights Council (UNHRC)
condemned Israel for the use of excessive firepower during Operation Protective Edge in Gaza in 2014.
The domestic law enforcement legal paradigm is the one that is most usually applied in CT. In Europe, in particular,
the law enforcement approach is normally applied outside of armed conflicts. However, this is not without
controversy as counterterrorist law enforcement measures are perceived to have threatened civil liberties in such
areas as detention without charge, the right to privacy, and freedom of expression. In the UK, for example, critics
have accused the police of abusing additional powers granted under the Terrorism Acts. Some of these abuses
have been successfully challenged in the European Court of Human Rights. Recent debate about legal measures
to curtail the flow of foreign fighters to ISIS in Syria and Iraq, and new measures to counter terrorism in France
following recent attacks have prompted fresh controversy. Following the attacks in Paris in November 2015, the
French government declared a state of emergency, which gave the local authorities sweeping powers to restrict
movement, close restaurants and theatres and prevent public gatherings.
Over the last decade, increasingly robust domestic legal systems and enhanced international legal cooperation have
enabled law enforcement agencies to be more effective at preventing, investigating and prosecuting terrorist acts.
But these successes have inevitably impacted civil liberties. As the threat from salafi-jihadist terrorism becomes more
acute, many legal controversies regarding individual freedoms remain unresolved. Notable domestic examples
include the privacy of electronic communications, the extent of government surveillance and the response to
returning foreign terrorist fighters. On the other hand, the European Convention on Human Rights has protected
some convicted terrorists from deportation due to “rights to family life” and claims they may be subject to torture in
their native land. This has led to calls in the UK, for example, for the Human Rights Act to be scrapped.

Discussion Questions:
1. How have your country’s laws and the legal powers of your security services been extended to deal with
terrorism? To what extent does this threaten civil liberties?
2. What are the legal arguments for and against the targeted killings of terrorist leaders? Is it permissible
to violate another state’s sovereignty in order to mount these attacks?

Additional Resources:
Dwigans, Dean L. 2016. Legal Issues in Combating Terrorism. In Combating Transnational Terrorism, eds. James K. Wither
and Sam Mullins, 163–179. Sofia, Bulgaria: Procon Ltd. MCRL Call No.: HV6431 .C663 2016 c. 1 [Available in Marshall
Center Research Library]
Anderson, David. 2016. The Terrorism Acts in 2015: Report of the Independent Reviewer on the Operation of the Terrorism
Act 2000. London: William Lea Group.
Wensink, Wim, et al. 2017. The European Union’s Policies on Counter-Terrorism: Relevance, Coherence and Effectiveness.
Brussels: Policy Department for Citizens' Rights and Constitutional Affairs, European Union.

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