Countering Terrorism-From Wigged Judges to Helmeted Soldiers? Legal Perspectives on America’s Counter-Terrorism Responses

Jackson N. Maogoto, University of Newcastlle

Abstract

This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures and implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN’s ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms—law enforcement and conflict management. Part III moves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. The part offers a discussion of the “extradite or prosecute” mechanism that lies at the heart of multilateral anti-terrorism conventions and a discussion of the bases of international criminal jurisdiction that provide a framework for domestic anti-terrorism statutes. It concludes with an analysis of the practice of apprehension of terrorists in international space, of which the U.S. has been a leading proponent, and offers a discussion of the complex legalities attendant to this controversial means. In Part IV, the article tackles the complexities and technicalities of the conflict management paradigm. It commences by examining the international legal uncertainties inherent in treating terrorists as combatants. The analysis moves on to cover the use of both limited lethal military force in the form of targeted assassinations and large scale military force in the form of pre-emptive strikes and retaliation. In a bid to highlight the transformation from the Cold War era to the post Cold War era, the part focuses on U.S. practice and world reaction both pre- and post-Cold War. The part concludes with an examination of the post-September 11 scenario and evaluates whether any perceptible changes in law or state practice are taking place following the military campaigns in Afghanistan (“Operation Enduring Freedom”) and Iraq (“Operation Freedom Iraq”).