But if instead states, in their words and actions, send the message that the war on
terror privileges policy and the interpretations of those who formulate them over law,
then not much of the above applies. Rather, the sky may very well be the limit, since (as
stated above) the policies are not emerging from the spirit or letter of the law but rather
come from the state’s perceived (counter-terrorist) security needs and goals. These needs
and goals will continue to direct state action when it regards, for example, the
interpretation of humanitarian law. Likely, the state will find a way to lower the legal
burden.
Here, we need to look directly at the logic of the state. In regards to its action in
Afghanistan and Iraq, for example, the United States claimed a Charter-based self-
defense right.
In order to fully exercise that right (i.e., in order to take care of the other
stated half of the equation, namely rooting out and destroying terrorism, i.e., part of the
rationale for invading Iraq), the United States found it necessary in the follow up to
subvert the humanitarian protections of those in its detention. In other words, the United
States sees it a zero-sum game. In this sense, President Bush’s immediate post-9/11
claim that “either you are with us or you are against us” signifies a clear departure from
the collective security framework. That the “gloves went off” after 9/11 suggests indeed
that policy (“security”) would be privileged over law.
However, does this have to mean that the law’s role has to be completely
subverted to the security prerogative when it comes to war on terror? There may be a
way to both accommodate and temper policymakers’ claimed prerogatives, an approach
that requires one to peer through both legal and political lenses in order to have a
necessary combination of judicial sensibility and political realism. The search may help
identify areas of overlap that would otherwise remain elusive, or at least the points in law
that are, realistically speaking, out of sync in this new security environment.
We do not yet know whether the post-9/11 developments – from Afghanistan to
Iraq, from Guantánamo to Abu Ghraib, represent a shift in state practice. It is reasonable,
however, to think they might. Terrorism and the 9/11 attacks in particular provoked a
reactionary response by the United States, one that precluded resort to, say, the doctrine
and processes of criminal law or of accepted self-defense criteria. The Caroline criteria,
12
Which reads in part: “Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security.”
9
Convention