The 'War on Terror' and the Framework of International Law

The first two pages of the book “The 'War on Terror' and the Framework of International Law” discusses the notion that the United States' war on terrorism is both an ongoing military action and a vital legal battleground.

Perhaps the most controversial aspects of the Bush administration's series of responses to the attacks of September 11, 2001 have surrounded the application (or lack thereof) of international law within the conflict. Politicians, diplomats, and scholars continue to wrangle over the legal aspects of fighting terrorism on a war footing and over the relevance or limitations of long-standing international humanitarian law (IHL) and international human rights law (IHRL) to this war. These considerations are likewise vital for historians of diplomatic history. International law serves as a crucial lens to understand the institutional, transnational, and historical contexts of the war on terror. Furthermore, it is essential to balance a study of the Bush Administration's novel constitutional interpretations regarding executive power and military adventurism during the war on terror with an understanding of their international resonance and constraints.

Helen Duffy seeks to enter that debate by bringing an understanding of the law back into the critique of foreign policy formulation in the war on terror and into the war on terrorism itself. Duffy focuses on the United States as the principal architect and actor in a "war on terror" that she archly views as an illegitimate and illegal policy choice (signaled by her persistent use of quotation marks to diminish it). She describes the marginalization of international law since the 2001 attacks and what she sees as the missed opportunities for enhanced reassertion of the rule of law. She is confident, and labors unconvincingly in this book to argue, that existing and long-standing international laws are robust enough to counter terrorism without the use of force. In Duffy's view, terrorism is an issue best dealt with as a crime to prosecuted, not as an act of war. She scrutinizes and perceives no limitations or gaps in the network of international laws that would inhibit the defeat and/or detention of terrorists around the world.

Meticulous if dense legal reasoning underlies her questionable central argument that responding to terrorism with military force is in fact virtually always unlawful in conception and execution. Her essential distinction is between actors that obey international legal standards as she presents them and those that do not. Duffy especially warns against the cascading effects of responding to lawless non-state terrorism with what she characterizes as state directed "unlawfulness with impunity" (p. 1) in everything from military action to detention of suspected terrorists. She forcefully emphasizes adherence to law instead of political or ideological rhetoric on the part of policymakers, but a decidedly ideological perspective of her own colors her legal discussion.

The 'War on Terror' and the Framework of International Law acts as an advocacy brief as well as a scholarly monograph. This book provides lengthy discussion of the laws and agreements governing application of force ...