International Humanitarian Law Versus the Counterterrorism War Paradigm: Analyzing the Contradictions and Consequences of the US “War on Terror”

By Lisa Hajjar
Submitted to Session P4734 (International Law in the Contemporary Middle East: Impeding or Facilitating Violence? (Part 1), 2017 Annual Meeting
All Middle East;
Human Rights;
LCD Projector without Audio;
The US “war on terror” continues under a third administration, with no end in sight. From official authorization of, first, torture, then targeted killing (mainly by means of drone warfare), the policies and practices authorized for the military and the CIA have been deemed “legal” by successive administrations, despite that they contravene the norms and rules of international humanitarian law (IHL). In this paper, I will address three sets of issues: 1) how US officials have sought to rationalize the forms, targets, and consequences of violence that constitute this transnational counterterrorism war by examining policy directives and government pleadings in cases pertaining to torture and civilian casualties caused by drone strikes; 2) how official assertions of the legality of the counterterrorism war paradigm and the secrecy shrouding decision-making affect and impede accountability for American perpetrators of war crimes and other gross violations; and 3) how the US counterterrorism war paradigm, coupled with unaccountability for violations, has influenced other governments engaged in wars in the contemporary Middle East. Through this triangulated analysis, I will explain the “gap” between what IHL requires (i.e., the rules of proportionality, distinction, necessity, and human treatment) and what the United States does, and then consider how the global power of the United States affects interpretations of what is legal in war. The counterterrorism war paradigm, which is constructed and defended as an alternative to the IHL paradigm, poses a serious threat to the international consensus on the basics of humanitarianism.