B RIE F P OLICY

Beyond the “War on Terror”: Towards a New Transatlantic Framework for Counterterrorism Anthony Dworkin

In the years since September 11, 2001, the European Union SUMMARY Deep divisions with the United States over and the United States have been divided in their response counterterrorism policy have been a major problem to international terrorism. To many Europeans, the Bush for the European Union since September 11, 2001. The administration’s “war on terror” was both unjust in itself and presidency of Barack Obama offers the possibility of harmful to European interests. Transatlantic disunity over a new approach, based on transatlantic agreement on the core principles for fighting terrorism. The EU counterterrorist policies caused practical problems on the should work with the new US administration to agree ground and hindered the projection of a political message a comprehensive declaration on counterterrorism that that could reduce the appeal of al-Qaeda and other terrorist could be signed under the Spanish presidency in 2010. groups. Now, with the presidency of Barack Obama, there

is the chance for a new transatlantic understanding on the There will still be differences between EU and US approaches. President Obama believes that the United nature of the fight against terrorism. Europe should seize States is at war with al-Qaeda, and Europeans reject this the opportunity to work with the United States to establish idea. But these differences are likely to be outweighed a set of principles that combine an effective response to the by Obama’s commitment to restore US adherence to terrorist threat with respect for the fundamental values at the international law and to respect fundamental human heart of the transatlantic alliance. rights. Even in the complex area of detention, both partners should now be able to accept basic rules of due process. US counterterrorist policies are a direct and significant concern for European countries. International terrorism To seize this opportunity, the European Union should remains among the greatest security risks faced by Europe as launch an internal review to clarify its own views well as the United States. While European security officials about core principles for fighting terrorism as part of the preparation for a joint declaration. Europe acknowledge that the United States has been successful should also restart a dialogue on international law and in removing much of al-Qaeda’s senior leadership and counterterrorism with the United States. This would infrastructure from action, many also believe that US policies give it the chance to influence US thinking, and allow have made it easier for al-Qaeda to recruit supporters through EU officials to push for clarification of the US position a narrative of Western oppression and hostility toward the on key questions of international humanitarian law 1 and human rights. Finally, the European Union should Muslim world. It has been difficult for European countries quickly agree a joint position on resettling detainees to avoid being stigmatized by association with these policies from Guantanamo, and member states should consider offering a new home to these prisoners wherever possible. 1 Based on ECFR interviews with current and former European security officials, November & December 2008. 2 ECFR/13 May 2009 www.ecfr.eu Beyond the “War on Terror” “war on terror” has made such a transatlanticmuchalliance a such made hasterror” on “war With Barack Obama in the White House, the difference difference the House, White the in Obama Barack With 2  European countries cooperated with US counter-terrorism counter-terrorism US with cooperated countries European This policy brief attempts to elaborate the areas of likely likely of areas the elaborate to attempts brief policy This The record of EU memberstatesduringEUalsoperiodthisrecordhas ofThe United States are now close enough in their views that they thatviews their in enoughclose now areStates United about their commitment to combat terrorism in line with the and Union European the allow would it significantly, More resolveoperationalhelpingvaluabletoin areas problems in agreement between European and American visions of the of visions American and European between agreement agreement: unlike European governments, Obama continues Obama’s apparent determination to restore the United States’ President Obama moved swiftly substantially. to strike down many of the US policies narrowed has terrorism against agreed policies on some difficult questions raised by external differencescountriesarguestheEUremain.thatthatand It conflict with al-Qaeda that includes some legal right to detain declared ambition to expand the scope of the rule of law, law, of rule the of scope the expand to ambition declared or kill enemy suspects worldwide, and to try them before before them try to and worldwide, suspects enemy kill or develop a comprehensive approach to the threat of terrorism replace them. There will not be complete transatlantic transatlantic complete be not will There them. replace with both partners respecting these values themselves. The themselves.values theserespecting partners both with military tribunals in some cases. However, this difference difference this However, cases. some in tribunals military more difficult in recent years. multilateralism and human rights in international politics politics international in rights human and multilateralism military operations against non-state armed groups, where groups, armed non-state against operations military the United States to present a unified message to the world the tomessage unified a presentto StatesUnited the be would framework a Such policies. counterterrorist their guide to understanding of framework common a agree to to asserttothat Unitedthe States engagedglobalis a armed in that European governments found most problematic, and and problematic, most found governments European that the United States has largely taken the initiative. More More initiative. the taken largely has States United the the impression of a gap between official rhetoric and covertofficialrhetoricandbetween gap a impressionof the shouldbeable —for the first time since September 11, 2001— standing as a law-abiding country, and the convergence convergence the and country, law-abiding a as standing hasrecently begun to sketch out his ideas about what should like detention, transfer of individuals and interrogation. interrogation. and individuals of transfer detention, like unless it works in close cooperation with the United States, United the with cooperation close in works it unless practice. At the same time, EU countries have been slow to slow been havecountries EU time, same the At practice. creating values, proclaimed own their offend that practices fundamental values that they both espouse. fight against terrorism and assess the importance of the the of importance the assess and terrorism against fight from overseas.from between US and EU views is likely to be outweighed by by outweighed be to likely is views EU and US between fight the of conceptions European and American between by EU member states. betweenbroadcounter-terrorismvisionhisof heldthatand its in succeed to hope cannot Union European the broadly, been troubling. There is strong evidence that a number of of number a that evidence strong is There troubling. been alliance security the of between Europe and the United strength States. historic the of because 125-146. and Counter-Terrorism”, JournalofCommonMarketStudies,Vol. 46,No.1,2008,pp. For adetaileddiscussion,seeDanielKeohane, “TheAbsentFriend:EUForeignPolicy 2 In particular,In Europeansclearlyhavenot do American political culture and circumstances that affect affect that circumstances and culture political American Americans see terrorism primarily as an external threat, while The Fight against Terrorism—European 3 5  4 “USRaisesNewAnti-TerrorismApproachwith EU”,Reuters,16March2009. James Steinberg floated the idea of a joint declaration during The best way to reinforce this message, this policy brief argues, Europeancountries do not all see terrorism in the same way; There are genuine differences between European and and European between differences genuine are There Bush administration presented the fight against terrorist terrorist against fight the presented administration Bush and American officials and in writing. in and officials American and about the progressive reduction of a continuing threat. talk organisation,toEuropeans preferwhilean asal-Qaeda an opening to move forward with an agreementthesealonganforwardwith move opening to an a contribution to a new partnership with the United States, United the with partnership new a to contribution a also need to decide how far these principles can accommodate Guantanamo Bay. and American Visions groups as a war in which military methods—killing enemy enemy methods—killing military which in war a as groups divisions of the last seven years have been overcome, and and overcome, been have years seven last the of divisions It terrorism.against fight the in cooperate tocommitments declaration would follow on from and complete earlier public distinctfromvisionthethatUnited the States followed after different American policies, where they persist. Finally, as as Finally, persist. they where policies, American different of law enforcement. Under President Bush, the United States would help to re-establish Europe and America as leaders leaders as America and Europe re-establish to help would the demonstrationthatsymbolicpowerful a as serve would a Suchprinciples. ofdeclaration public a through be would range of principles governing counterterrorism. They will will They counterterrorism. governing principles of range full the on position common a developing at aimed review resettling some of the detainees who have been held in in held been have who detainees the of some resettling their views of terrorism, but these differences were amplified ak i Wsigo o 1 March. 16 on Washington in talks h Uie Sae te wl ne tesle t luc a launch to themselves need will they States United the the European Union should agree a common position on on position common a agree should Union European the in the debate about the relationship between security and and security between relationship the about debate the in ideology and geopolitics. As has often been pointed out, out, pointed been often has As geopolitics. and ideology should welcome this overture, but to reach agreement with agreement reach to but overture, this welcome should suggested that the objective of its policies (and thus the the thus (and policies its of objective the that suggested has already raised this idea in discussions with European European with discussions in idea this raised already has human rights in today’s world. The author of this policy brief ultimate aim of the “war on terror”) was the elimination of elimination the was terror”) on “war the of aim ultimate play a prominent part; Europeans see it above all as a matter lines: according to EU officials,lines:accordingdeputyEUsecretarystate USto of September 11, 2001. The differences are rooted in culture, culture, in rooted are differences The 2001. 11, September fighters or removing them from the field of battle—would battle—would of field the from them removing or fighters for European societies it has a large internal dimension. by the particularly aggressive ideological claims that the the that claims ideological aggressive particularly the by but EU members do share a broadly similar outlook that is that outlooksimilar broadly a share do members EU but  evidence thatal-Qaeda hassucceededinestablishingactivecells theUnitedStates. violence fromanorganized grouponitsterritoryinrecentyears,and thereislittle City Bombingof19April1995,butithasnot facedasustainedcampaignofpolitical The UnitedStateshasexperiencedinternalterrorism, notablywiththeOklahoma commentary_a_new_partnership_in_support_of_international_law_dworkin/ Council onForeignRelations,5November2008, http://ecfr.eu/content/entry/ Anthony Dworkin,“ANewPartnershipinSupport ofInternationalLaw”,European 4 4 European countries countries European 3 There may now be be now may There

5 The Bush administration put forward. European governments if the “war on terror” need not comply with internationally recognise the external dimension of terrorism, stemming accepted notions of the rule of law. It was responsible for above all from areas of weak or ineffective government. The indefinite detention with inadequate review, secret detention British prime minister, Gordon Brown, said on 27 April 2009 of some “high-value detainees”, the systematic infliction of that a “chain of terror” linked the border areas of Afghanistan physical and mental pain and suffering rising to torture, and and Pakistan to the streets of many of the capital cities of the the rendition of prisoners to other countries where they were world.6 Germany has arrested suspects linked to an Uzbek tortured by local intelligence services. Islamist group based in the Afghanistan/Pakistan border region, and security officials have expressed concern about There is convincing evidence that several European countries the risk of attacks in Germany during the run-up to this year’s were involved in some of these practices. An investigation federal elections. Spain and France face threats from the carried out by the Parliamentary Assembly of the Council Algerian-based group Al-Qaeda in the Islamic Maghreb, while of Europe identified several forms of “collusion” for which European counterterrorism coordinator Gilles de Kerchove its member states were responsible. These included hosting has emphasized the importance of the ungoverned expanses secret prisons, handing suspects over to the United States of the Sahel as a hinterland for terrorists who might threaten for unlawful detention, allowing “rendition” flights to Europe through North Africa. European governments pass through their territory, passing on intelligence for regularly say that the aim of NATO’s engagement in use in rendition or detention decisions, participating in Afghanistan is to deny a safe haven to terrorists.7 interrogation of detained suspects, and making use of intelligence derived from interrogation involving physical Domestically, while highlighting the law enforcement and mental abuse.10 The European Parliament convened a dimension of counterterrorism, European states have temporary committee on extraordinary rendition whose taken or considered steps that go beyond the prosecution final report condemned “the acceptance and concealing of of individuals for attacks that have already taken place. the practice, on several occasions, by the secret services and Sometimes this has involved an expansion of the criminal law: governmental authorities of certain European countries.” 11 In for example, the criminal prosecution of terrorists in France many European countries, including most recently the United is based on a legal concept of conspiracy, the association des Kingdom and Spain, revelations of official involvement in the malfaiteurs, that a leading French expert described as clearly transfer of US prisoners have caused political embarrassment “aimed at preventing a crime that has not yet happened.”8 In and controversy. other cases, European governments have sought increased detention powers within the European human rights Intelligence sharing, joint interrogations and the granting framework. The United Kingdom passed legislation allowing of overflight rights would normally be routine actions for the government to detain foreign terrorist suspects who closely allied intelligence services. The legal and moral could not be returned to their own country for fear that they problems raised by such cooperation with the United would be abused, and imposed control orders on the men States since September 11 illustrate the dilemmas that US after the system of detention was overturned by the nation’s counterterrorism policies have caused for Europe. In some highest court. The German minister of the interior, Wolfgang cases, European intelligence agencies may have faced a Schäuble, has suggested that some form of preventive genuine difficulty in fulfilling their duty to protect their detention for terrorist suspects might be desirable.9 publics by accepting and acting on intelligence from the United States, when the United States would not give details The essential difference between the vision of counterterrorism of the circumstances in which individuals were held.12 that is broadly shared by European states, and that of the However, as the UN special rapporteur Martin Scheinin has Bush administration since September 11, concerns the degree argued, participation in the interrogation of detainees held in to which the fight against terrorism requires governments to places where their rights are being violated can be understood ignore normal rules. President Bush and his officials framed as implicitly condoning such practices.13 While the Bush their response to al-Qaeda as something that took place, to administration over time acknowledged some of the practices a significant degree, outside the conventional rules and it engaged in, and President Obama has released further relationships that define international and domestic society. official memoranda from his predecessor’s administration, They appeared to believe that the urgent need to obtain European governments have been less forthcoming in intelligence about al-Qaeda’s plans and to kill or capture accounting for the actions that have been attributed to them. its members meant that the United States must disregard the broader context in which counterterrorist efforts are Whatever their involvement with US policies, EU countries pursued. Above all, the Bush administration often acted as continue to argue that terrorism should be confronted on a

 10 “Alleged secret detentions and unlawful inter-state transfers of detainees involving 6 “Press conference with President Karzai in Afghanistan”, Prime Minister’s Office, Council of Europe member states”, Committee on Legal Affairs and Human Rights, Parliamentary Assembly, Council of Europe, 12 June 2006. 27 April 2009, http://www.number10.gov.uk/Page19145. 11 “Report on the alleged use of European countries by the CIA for the transportation 7 For a recent statement, see Angela Merkel & Nicolas Sarkozy, “La sécurité, notre and illegal detention of prisoners”, European Parliament, 30 January 2007. mission commune,” Le Monde, 3 February 2009. 12 Communication from former European security official, 9 March 2009. 8 ECFR Interview with Antoine Garapon, Paris, 22 October 2008. 13 “Report of the Special Rapporteur on the promotion and protection of human rights 9 “We Could Be Struck at Anytime”, Spiegel Online, 9 July 2007, http://www.spiegel. and fundamental freedoms while countering terrorism, Martin Scheinin”, UN Human de/international/germany/0,1518,493364,00.html Rights Council, 4 February 2009, p. 19. 3 4 ECFR/13 May 2009 www.ecfr.eu Beyond the “War on Terror” “to initiate a new partnership based on mutual respect and and respect mutual on based partnership new a initiate “to A Shift under Obama Arab and Muslim listeners that the United States was ready wasStatesUnited the listeners Muslim thatand Arab Withintwo days ofentering the White House, Obama issued 17  16 See“Obamateamdrops“waronterror”rhetoric,” Reuters,30March2009. 15  14  Through his speeches and his actions since taking office, office, taking since actions his and speeches his Through In hisinterviewIn withal-Arabiya lateinJanuary promisedhe UnitedKingdomproclaimedhas emergency anrespect inof Barack Obama has begun to change US counterterrorism counterterrorism US change to begun has Obama Barack against al-Qaeda from his wider attitude to the Muslim world. a particularly pointed provision, Obama required all US US all required Obama provision, pointed particularly a sweeping a to amounted that orders executive of series a act against suspected terrorists within the criminal justice justice criminal the within terrorists suspected against act involved legislation the that ruled Lords of House the after CIA to use only those interrogation practices approved by by approved practices interrogation those only use to CIA Conventions;Genevarequiredthethe of 3Article Common detention, and Spain allows incommunicado detention for for detention incommunicado allows Spain and detention, camp be closed within a year; halted all prosecutions before the of violence and hatred”—he has notably refrained from from refrained notably has hatred”—he and violence of drawn from military models. easier to prosecute terrorists without resorting to procedures officials to disregard any interpretation of the laws governing of the CIA’s secret prisons and required the United States States United the required and prisons secret CIA’s the of of their obligations in times of nationalobligationstheiremergency,oftimesof intheonly reversed the Bush administration’s reinterpretation of of reinterpretation administration’s Bush the reversed counterterrorism administration’s Bush the of rejection was disproportionate and discriminatory. In European civilEuropean discriminatory.disproportionate In andwas many from derogate to countries allows framework rights mainstream.WhileObama follows hispredecessor sayingin mutual interest”. military tribunals established under the previous government; talkingofbroadera “war onterror” asthe central organizing that the United States is at war with al-Qaeda—he referred in to all detainees held in connection with armed conflict. In In conflict. armed with connection in held detainees all to Internationalthegive toCrossaccess RedCommitteethe of closure the ordered Manual; Field Interrogation Army the indicated that he will take pains to differentiate his campaign international political rules. international terrorism since 2001, and it withdrew the claim system. his inaugural speech to a “war against a far-reaching network historyof confronting internal terrorist groups, have made it rnil o Aeia frin policy. foreign American of principle policy in ways that bring it significantly closer to the European up to thirteen days. long-term basis within the normal framework of domestic and lawcountries, authorities often havemuch greater leeway to framework.Hedirected that theGuantanamo Baydetention http://www.alarabiya.net/articles/2009/01/27/65087.html “Obama tellsAlArabiya peacetalksshouldresume”,AlArabiya.net, 27January2009, Rights Watch,26January2005. Justice”, HumanRightsWatch,1July2008 and “SettinganExample?”,Human These measureshavebeencriticizedonhuman rightsgrounds.See”Pre-empting against Terrorism”,LadocumentationFrançaise, 2006,pp123-4. delivered 15January2009,andtheFrenchgovernment whitepaper“Prevailing See e.g.thespeechbyDavidMiliband,“After Mumbai,BeyondtheWaronTerror”,

France and Spain both permit lengthy pre-trial pre-trial lengthy permit both Spain and France 17 15 These laws, which reflect Europe’s long 14 Although the European human 16 Instead he has has he Instead At the heart of the differences between Europe and and Europe between differences the of heart the At officials European many themselves, policies American Legal Frameworks for Fighting Terrorism EU and the US will continue to have different perspectives different have to continue will US the and EU European views into the task forces’ discussions, perhaps perhaps discussions, forces’ task the into views European The precise rules for these procedures remain to be determined, In addition, Obama set up a task force to make make to force task a up set Obama addition, In Despite the shift in direction under President Obama, the the Obama, President under direction in shift the Despite arguedthat the International Covenant onCivil and Political long has StatesUnited the andconflict, armed an as Qaeda the Outside operations. counterterrorist to applies advisors of the sort that was held during the last few years (as arelikely toform part ofhis counterterrorism policy, though third to prisoners of transfer the and interrogation about governmentshavelooked domesticto lawandhuman rights conflict is most relevant. In large part, this disagreement disagreement this part, large In relevant. most is conflict discussed in the following section). introduce to seek should EU The policy. counterterrorism militarycommissionsof use the anddetentiontrialwithout of reviews ordered also He date. same the by countries out. European officials are in many cases willing to concedewillingcasestomanyEuropean out.officials in are someaspectsfighttheagainstonof terrorism. Although the of rendition to transfer individuals to other countries, as as countries, other to individuals transfer to rendition of same the at but change, significant a represented orders narrow circumstances of Afghanistan and Iraq, European European Iraq, and Afghanistan of circumstances narrow recognize that a number of them fall into a grey area and that recommendations by July 2009 about future American American future about 2009 July by recommendations the United States is the question of which legal regime regime legal which of question the is States United the that the United States is dealing with complex questions that carriedaretheyway theirlegitimacythe on part depends in throughreneweda dialogue between European and USlegal the US Congress. The task force process offers an opportunity that indicated has Obama work, their complete forces task to tribunalsmilitary new up setting from States United the to continue might States United the that possibility the out rule not did orders The make. will forces task the that recommendations policy the for scope wide fairly left time executive Obama’s detainees. Guantanamo all of cases the is likely to continue. Obama describes the fight against al- against fight the describes Obama continue. to likely is some rejecting While overstate. to easy be also would it in a different form than under President Bush. between Justice of Department the by issued interrogation significance of these differences should not be minimized, minimized, be not should differences these of significance have not arisen before and do not have easy answers. hold alleged terrorists without charge; they did not prevent not did theycharge; withoutterrorists alleged hold law, while the United States has argued that the law of armed provide input that could help shape the new administration’s withnegotiation further and reportsforce task the pending the before Even law. international with complied it as long prosecuteterroristuseforbidthe notsuspects; did they and detention,policyon anotherrecommendationsmakeand to September 11, 2001 and the end of the Bush administration. for the European Union to engage with the United States and Rights, the most important human rights treaty to which it Obama’s administration can be expected to take a comparable is party, does not apply outside American territory. Europe step with respect to inter-state armed conflict. One of the most rejects the notion of a global war against al-Qaeda and all controversial claims made by President Bush was that even EU member states are party to the European Convention on in these conflicts (such as the initial war between the United Human Rights, which has been held by the European Court of States and the Taliban regime in Afghanistan) irregular Human Rights and national courts to apply extraterritorially fighters were to be regarded as “unlawful combatants”, not in certain limited cases. entitled to the protection due either to prisoners of war or civilians in the Geneva Conventions. This position found European and American views on the legal framework for little support internationally, but there remains a question counterterrorism were at the centre of a closed-door dialogue about how far such fighters are covered by the specific between government legal officials that was launched by provisions on civilians in the Fourth Geneva Convention. the US State Department legal advisor John Bellinger in However the United States has previously agreed that the set early 2006. According to participants, the discussions were of “fundamental guarantees” listed in Article 75 of the first helpful in clarifying views on both sides. European officials Additional Protocol to the Geneva Conventions applies at acknowledged that there can be an armed conflict between a a minimum to all detainees in international armed conflict state and a non-state group on the territory of another state. as part of customary law. The Bush administration refused The United States indicated that, despite its assertions of a to confirm this position, leaving American policy on a vital global war against al-Qaeda, it did not claim an automatic question of humanitarian protection in a damaging state of right to use armed force on the territory of any other state uncertainty.20 It would be reasonable to expect the Obama without its consent. Bellinger has said publicly that he would administration to return to the traditional understanding, not suggest that the United States “is free to use military force and European governments should ask for an early public against al-Qaeda in any state where an al-Qaeda terrorist may confirmation of this point as a way of facilitating joint military seek shelter”. But he added that “where a state is unwilling or operations in the future. unable to [prevent terrorists from using its territory as a base to launch attacks], it may be lawful for the targeted state to The new administration might also be prepared to clarify use military force in self-defence to address that threat”. 18 the US position on human rights. While the United States believes that human rights treaties do not apply outside The details that have emerged from this dialogue provide a its own borders, it has consistently recognized certain useful starting point for assessing how far apart the EU and the fundamental human rights as part of customary law. The US remain in their understanding of the legal framework for Operational Law Handbook produced by the US Army fighting terrorism. Many Europeans recognize the existence Judge Advocate General’s Legal Center says that a series of of an armed conflict against the Taliban and al-Qaeda in human rights are “binding on US forces during all overseas Afghanistan; where the United States goes further is in extending operations” and govern the treatment of any individual. The the boundaries of the conflict to take in al-Qaeda’s operations rights listed include the prohibition of: murder, or causing the around the world. The new US Attorney General Eric Holder disappearance of individuals; torture; punishment without said in his Senate confirmation hearing that he would regard fair and regular trial; and prolonged arbitrary detention.21 someone captured by the CIA in the Philippines and suspected European officials should press the new US administration of financing al-Qaeda worldwide as part of the battlefield in a to elaborate on the way these human rights apply in counter- war. This assertion may be difficult for Europeans to accept, but terrorist operations. it remains unclear what powers the Obama administration will claim in practice as part of this global conflict. Moreover the Europe and the United States may continue to differ about US Supreme Court has not yet ruled on the central question which operations within the spectrum of armed force of whether there is an armed conflict with al-Qaeda as distinct can legitimately be classified as part of an armed conflict. from that against the Taliban in Afghanistan.19 However, they should now be able to acknowledge a shared understanding that international law applies across the Most importantly, the United States under Obama is likely spectrum in a way that is predictable and respects fundamental to recognise much greater legal constraints on its military human rights. In addition, the practical implications of the operations than the Bush administration did. Already, by US claim that it is engaged in a global armed conflict with al- revoking President Bush’s executive order on Common Article Qaeda may now be limited by the effect of international and 3, Obama has restored the United States to a mainstream domestic law and by a new assessment of American policy. In interpretation of this key provision, which applies minimum the following section, this paper examines the policy areas humanitarian standards to conflicts between states and non- where EU countries and the United States have been at odds, state groups. and analyses how far their approaches are now likely to converge.

18 John B.Bellinger III, “Legal Issues in the War on Terrorism”, speech delivered at the London School of Economics, 31 October 2006, http://www.lse.ac.uk/collections/ 20 Anthony Dworkin, “United States is “Looking At” the Place of Fundamental LSEPublicLecturesAndEvents/pdf/20061031_JohnBellinger.pdf. Guarantees in the War on Terror”, Crimes of War Project, 1 March 2006, http:// 19 It is sometimes claimed that the Hamdan decision in 2006 recognizes the existence www.crimesofwar.org/onnews/news-guarantees.html of such a conflict, but in fact it merely said that if the conflict existed then it would be 21 “Operational Law Handbook (2007)”, The Judge Advocate General’s Legal Center & governed by Common Article 3 of the Geneva Conventions. School, US Army, 25 June 2007, pp. 43-46. 5 6 ECFR/13 May 2009 www.ecfr.eu Beyond the “War on Terror” Detention While continuing to claim a global detention power, this this power, detention global a claim to continuing While 23  22 European countries’ views on the legitimate scope of detention The issue of detention has been at the heart of transatlanticofheart the at beendetentionhas ofissue The HoweverNATOhasnotdeveloped alternative,an duepartly NATO failed even to agree a common memorandum of of memorandum common a agree to even failed NATO March, the administration filed a brief in connection with with connection in brief a filed administration the March, 13 On captured. are they where matter no an conflict, in armed detainees security as al-Qaeda to linked closely are a threat to the security of the United States”. United the of security the to threat a argued in a major speech on counterterrorism that the United administration had asserted. More recently, President Obama appliedby the Bush administration by requiring “substantial armed conflict against a non-state group in a third country. third a in groupnon-state a againstconflict armed alldetained individuals theAfghanto government within 96 authorities. This was in part because some European statesEuropean some because part in was authorities.This Guantanamo Bay should be closed, his administration claims disagreements since 9/11, and EU countries and the Unitedthe countriesand EU anddisagreements9/11, since during military operations remain unclear. EU member member EU unclear. remain operations military during detention into line with international law. coalition partners”. The brief further argued that “individuals on US statutory law rather than the president’s inherent inherent president’s the than rather law statutory US on right to hold “persons who were part of, or substantially substantially or of, part were who “persons hold to right whether they have a legal right to detain individuals in an an in individuals detain to right legal a have they whether would exhaust every avenue to prosecute these people where who provide substantial support to al-Qaeda forces in otherprovidesubstantialal-Qaeda inforceswho supportto may properly be deemed part of al-Qaeda itself.” that the United States has a right to hold people it believes it people hold to right a has States United the that to the lack of consensus among European members about about members European among consensus of lack the to Security. ofDirectorate Afghanistan’sNational of hands the at treatment inhuman or torture faced have detainees that that are engaged in hostilities against the United States or its initially transferred detainees to the United States as a co- a as States United the to detainees transferred initially for standards US bring to promised also He feasible. was it supported, Taliban or al-Qaeda forces or associated forces forces associated or forces al-Qaeda or Taliban supported, subject. Although President Obama has directed that that directed has Obama President Although subject. support” rather than merely “support”. It also dropped the dropped also It “support”. merely than rather support” states participating in NATO’s ISAF mission in Afghanistaninmission ISAFNATO’sparticipating statesin habeas corpus litigation from Guantanamo that asserted a asserted that Guantanamo from litigation corpus habeas hours. This policy has attractedreportscriticismhaspolicybecauseof Thishours. power as commander-in-chief during wartime, as the Bush the as wartime, commander-in-chiefduring as power thetermuseof“enemy combatant” thathadbeenemployed legal brief tightened the standard for detention that had been understandinggoverntransferdetaineesthetoAfghanof to parts of the world [apart from the battlefields of Afghanistan] States continue to have somewhat different views on the the on views different somewhat have to continue States Statesmight need to detain “a number of people who cannot be prosecuted for past crimes, but who nonetheless pose pose nonetheless who but crimes, past for prosecuted be by the Bush administration, and based the authority to detain belligerent,beensinceNATOhaspolicybuthand2005itto  www.nytimes.com/2009/05/21/us/politics/21obama.text.html?_r=1 “Text: Obama’s SpeechonNationalSecurity”,NYTimes.com, 21May2009,http:// District ofColumbia,13March2009,pp.2, 7. Relative toDetaineesHeldatGuantanamoBay”, UnitedStatesDistrictCourtforthe “Respondents’ MemorandumRegardingthe Government’sDetentionAuthority 23 22 He said he he said He Afghanistan subsequently to transfer the prisoners to third to prisoners the transfer to subsequently Afghanistan As part of this process, Europe should seek input into the the into input seek should Europe process, this of part As the about dispute a to reduced be can positions American While European nations do not share the US notion of a of notion US the share not do nations European While European armed forces maintained detention facilities facilities detention maintained forces armed European European objections to Guantanamo were based above all all above based were Guantanamo to objections European The complexity of the issue of detention was illustrated by by illustrated was detention of issue the of complexity The In large part, the difference between the European and and European the between difference the part, large In During earlier military operations in Kosovo and Iraq, Iraq, and Kosovo in operations military earlier During adopted by the UN Security Council for future missions. a right to be informed of the reasons for which they are are they which for reasons the of informed be to right a security a as detained Individuals hearing. independent an detaineestorightprinciplethat corethehaveOnebemight are adequate grounds for each individual detention, it should and incorporates much better safeguards to ensure that there al-Qaedaas thatdoes not fight through anything resembling such group armed an of case the straightforwardin not are Council. The situation in Afghanistan is particularly particularly is Afghanistan in situation The Council. geographical extent of this armed conflict and the forms of forms the and conflict armed this of extent geographical global armed conflict, the majority of those whom the United countries like the United States. complicated because the Afghan government does not itself notgovernment doesAfghan complicatedthe because and conflict armedinternational an of context the in either detaineesmilitaryin operations (the“Copenhagen Process”) detention policy, perhaps through a submission drafted by drafted submission a through perhaps policy, detention detention that both transatlantic partners are willing to adopt. directly those on tightly more focused is policy detention nature arbitrary often and sweeping the and to, entitled were detainees protection legal any) (if what about clarity conventional military engagements. occupation, or with the authorisation of the UN Security Security UN the of authorisation the with or occupation, on their status as combatants) should be entitled to appeal to entitled be should combatants) as status their on US future If detain. to whom about decisions American of of lackdetention theregime,the indefinite ofnature the on thedecision theDanishof government 2007launchinto an system. justice criminal its within suspects as them treats thataimedestablishto bestpractice standards thatcould be their case before an impartial body providing adequate dueadequateproviding bodyimpartial an beforecase their basedwar prisoners ofdetained asthose from(apart threat the EU counterterrorism coordinator . US onadvise to up set hasPresidentObama thatforce task governing principles basic agree to try to Stateswith United the work to officials European for possible be therefore inter-governmental discussion process on the handling of of handling the on process discussion inter-governmental in Afghanistan or Pakistan, albeit of different nationalities. nationalities. different of albeit Pakistan, or Afghanistan in strongly opposed any provision that would have allowed allowed have would that provision any opposed strongly hold Taliban fighters as security detainees, but instead instead but detainees, security as fighters Taliban hold process with the least possible delay. This should include include should This delay. possible least the with process disorder, of regions in apprehended and al-Qaeda to linked questions These detention. justify would that participation States wishes to continue detaining are fighters captured captured fighters are detaining continue to wishes States be less objectionable from a European standpoint. It might It standpoint.European a fromobjectionable less be 24  author. Sibylle Scheipers,“Detention intheWaronTerror”,unpublishedpaper onfilewith 24 being held. There should also be a requirement of regular Rights.27 EU member states and the United States should review, and recognition that detention can only be ordered now be able to agree that in future they will hold all detainees on an individual basis for imperative reasons of security.25 in a registered place of detention and give their names to The nature of the review bodies might depend on the an independent organization such as the International circumstances in which the detainee was captured and the Committee of the Red Cross. length of detention.

It might be desirable to go further, and specify that all Torture civilian detainees should ultimately be entitled to judicial review of their detention. It is not clear, however, that Under President Bush, the United States produced new there would be a consensus for this principle, given existing interpretations of international laws against torture that uncertainty about the reach of human rights law, the lack allowed the infliction of pain and suffering through methods of an entitlement to judicial review for civilian detainees such as “waterboarding” (near-suffocation with water) in the Geneva Conventions, and the fact that US courts are against suspected terrorists. The overwhelming consensus in currently considering cases about whether US-held detainees Europe is that these methods fall well within the definition in Afghanistan are entitled to judicial review. At the least, a of torture. The divergence in transatlantic understanding right of judicial review could be guaranteed for anyone who of the relevant treaties was strikingly illustrated when the had not been detained in a zone of active hostilities. Foreign Affairs Committee of the British Parliament argued in 2008 that “given the clear differences in definition, the It would also be desirable to recognize limits on the UK can no longer rely on US assurances that it does not situations in which states can detain people without charge. use torture, and we recommend that the government does The European Union and the United States should reaffirm not rely on such assurances in the future.” 28 A 2007 report that security detention is only permissible in situations of by the International Committee of the Red Cross on the armed conflict, public emergency, or where authorized by treatment of the fourteen “high-value” detainees held by the Security Council. A rule of this sort would not resolve the CIA, leaked to the press in March 2009, concluded that disagreements about the definition of armed conflict or about in many cases the detainees had been tortured.29 In April whether an external terrorist threat can constitute a national 2009, Spanish judge Baltasar Garzon announced that he was emergency. But it would at least confirm that there are limits opening an investigation into what he called “an authorized of principle on the exercise of security detention. and systematic plan of torture and mistreatment” developed by members of the Bush administration.30

Secret Detention President Obama has already struck down the Bush administration’s legal opinions on interrogation practices When President Bush announced that he was transferring and expressed his opposition to torture in the strongest terms. fourteen detainees from the CIA’s custody to Guantanamo The greater emphasis that he appears to place on prosecuting Bay in September 2006, he made it clear that the secret terrorist suspects wherever possible provides an additional detention programme was not being closed down. President reason for his administration to shun any coercive form of Obama directed that the CIA close its existing detention interrogation that might render confessions inadmissible facilities and not operate any detention facilities in future. He at trial. also required that the International Committee of the Red Cross be notified and given timely access to any individual This shift creates the possibility of a renewed consensus detained by the United States in any armed conflict. between the United States and Europe on torture. Where differences persist, for instance regarding the precise It has been widely reported that two of the secret prisons definition of cruel, inhuman and degrading treatment in the operated by the CIA were in Poland and Romania, though Convention against Torture, these are not significant enough neither state has acknowledged that they gave permission for to present an obstacle to transatlantic understanding. The secret prisons on their territory. More recently, the European European Union and the United States should also attempt Union has affirmed that secret detention facilities are “not to formulate standards governing the questioning of, and in conformity with international humanitarian law and provision of information regarding, detainees held overseas international criminal law”.26 The Council of Europe’s Venice by other countries, in line with the UK government’s recently- Commission has also declared the use of secret detention announced review of the subject. to be a violation of the European Convention of Human

27 “Opinion on the International Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners”, European Commission for Democracy through Law (Venice Commission), 17/18 March 2006. 28 “Human Rights Annual Report 2007”, House of Commons Foreign Affairs Committee, 9 July 2008, p. 25. 25 For a similar set of requirements, see Ashley Deeks, “Administrative Detention in 29 “Report on the Treatment of Fourteen ‘High-Value’ Detainees in CIA Custody”, Armed Conflict”, Case Western Reserve Journal of International Law, Vol. 40, No. 3, International Committee of the Red Cross, February 2007, p.26, available at http://www. 2009, pp. 403-436. nybooks.com/icrc-report.pdf 26 “Press Release: General Affairs and External Relations”, Council of the European 30 Daniel Woolls, “Spanish judge opens Guantanamo investigation”, Associated Press, 29 Union, 15 September 2006, p.17 April 2009. 7 8 ECFR/13 May 2009 www.ecfr.eu Beyond the “War on Terror” 33 32  31 Extraordinary Rendition What was new in the Bushadministration’stheinnew Whatwas renditionofuse French rendition of Carlos “the Jackal” from Sudan to France Former US secretary of state Condoleezza Rice described the out known—carried is as far not—as have states European European Union and the United States should therefore be thereforeshould States United the and UnionEuropean rendition of use Bush’s President to objections European The Obama administration has indicated that it is is it that indicated has administration Obama The The policy of “rendition” whereby individuals are transferred Rights to relax the standards applying in such cases. cases. such in applying standards However,thein the relax to Rights any exceptions, no matter how “undesirable or dangerous” dangerous” or “undesirable how matter no exceptions, any realrisktortureaof the receivingin statewasnotsubject to are known to use torture, relying on diplomatic assurancesdiplomatic on relyingtorture, use to known are and evaluate the practices of transferring individuals to to individuals transferring of practices the evaluate and directedObama“studyisbyto forcestask upthe set of One countries to which individuals were transferred. extradition was not invented by the Bush administration. administration. Bush the by invented not was extradition obligationnot toexpel orextradite someone who would face out under President Bush have been criticised particularly particularly criticised been have Bush President under out confirmationhearingthat“wherereturned weindividual an on occasion transferred people extrajudicially for trial. trial. for extrajudicially people transferred occasion on of being subjected to torture”. practicessuchcomply”thatensure to order nationsinother oftorture by the countries to which prisoners were sent. The was that suspects were transferred not to face legal processlegal face to transferrednotweresuspects that was rights organisations for deporting people to countries that that countries to people deporting for organisations rights recently,Europeancountries criticisedbeenhavehuman by renditions for the purposes of interrogation, but they have they but interrogation, of purposes the for renditions returnorextradite persona toanother state where there are include would This law. international and domestic with newly-appointed CIA director, Leon Panetta, said in his his in said Panetta, Leon director, CIA newly-appointed the absolute nature of the ban on torture, stating that the the that stating torture, on ban the of nature absolute the h cnut f h pro involved. person the of conduct the that the individuals concerned will not be tortured. European the obligation under the Torture Convention not to “expel, “expel, to not Convention Torture the under obligation the the existing standard. theirlaws,think I that appropriateanis userendition.”of their rights to try that individualexercised and tothey prosecute himand under country, another of jurisdiction the to Obama’sprocess. legal outsidecountries other to terrorists states have also petitioned the European Court of Human Human of Court European the petitioned also have states in 1994 as a historical precedent for US policies. US for precedent historical a as 1994 in substantialgrounds forbelieving that hewould beindanger provide the basis for a common European reaffirmation of reaffirmation European common a for basis the provide likely to continue the practice of transferring suspected suspected transferring of practice the continue to likely from one country to another outside any legal process of of process legal any outside another to country one from focused primarily on its essentially lawless nature and the use because of the well-documented use of torture by the the by torture of use well-documented the of because butforthepurposes interrogation.of Therenditions carried  Saadiv.Italy 6 February2009. Eli Lake,“Panettabacksrendition,butnottorture”, TheWashingtonTimes, State, 5December2005, http://2001-2009.state.gov/secretary/rm/2005/57602.htm Condoleezza Rice,“RemarksUponHerDeparture forEurope”,USDepartmentof , EuropeanCourtofHuman Rights,No.37201/06,28February2008. Saadi decision in 2008, the Courtaffirmeddecision2008,thein 33 This ruling should should ruling This 32 More More 31 Fair trials When feasible, the United States will try them in US domestic 36  35  34  Europeansfrequently criticized the military tribunals as they In May 2006, the British attorney general, Lord Goldsmith, Lord general,attorney British the 2006, May In It remains unclear at the time of this announcement announcement this of time the at unclear remains It Baltasar Garzon warned that “no country in Europe could could Europe in country “no that warned Garzon Baltasar PresidentObama has made clear that his administration will as long as it respects its obligationsrespectsinternationalitsunderit law.as long as able to endorse a common position on the transfer of terrorist abandon it. administration. President Obama announced on 15 May 2009 reviseda version theofmilitary tribunals thesetbyBushup a legitimate forum for prosecution, while bringing them in them bringing while prosecution, for forum legitimate a Obama has now promised to reverse. Congress to seek additional reforms in the future. Congress passed the Military Commissions Act of 2006, 2006, of Act Commissions Military the passed Congress chance they would be put before these militarybeforethesetribunals.”put be would chancethey any were there if States United the to detainees extradite courts, as it did with the Qatari citizen Ali al-Marri, who who al-Marri, Ali citizen Qatari the with did it as courts, evidence—that would “begin to restore the Commissions asCommissions the restore to “beginevidence—that would offered sufficient guarantees of a fair trial in accordance accordance in trial fair a of guarantees sufficient offered or degrading treatment, and restrictions on the use of hearsay ih nentoa standards.” international with will remain controversial, but states do not appear ready to readyappear not do statescontroversial,remain butwill with such a principle, both EU member states and the United reaffirm that they will not transfer anyone to a country where were constituted under the Bush administration. Shortly after with European conceptions of due process, in particularEuropeanprocess,withconceptionsinduethe of retainednumbera provisionsof thatappeared incompatible militarycommissionprocess.theHowever,revisedit which military trials for terrorist suspects. Many in Europe will will Europe in Many suspects. terrorist for trials military tribunals proposed for those detained at Guantanamo Bay Bay Guantanamo at detained those for proposed tribunals there are substantial grounds for believing they would be be would they believing for grounds substantial are there they were first announced, the Spanish investigative judge judge investigative Spanish the announced, first were they that he was seekingthesemilitarywasreformstocommissions—he that to a terrorist organization in April 2009. In other cases, it will said that he was “unable to accept that the US military military US the that accept to “unable was he that said subject to torture or cruel and inhuman treatment. Even Even treatment. inhuman and cruel or torture to subject including a ban on evidence obtained through cruel, inhuman suspectseventheif United States continues usetorendition, how extensively the Obama administration plans to use use to plans administration Obama the extensively how pleadedguilty tothe charge ofconspiring toprovide support linewiththerule law.”of possible use of evidence obtained through coercion, which which coercion, through obtained evidence of use possible Statesare likely tocontinue torely ondiplomatic assurances Specifically,EU member states and the United States should from receiving countries that they will not torture. The policy follow a hybrid approach to prosecuting terrorist suspects. suspects. terrorist prosecuting to approach hybrid a follow bringsuspectscharged beforeviolatingwithwar oflaws the February 2002. Aryeh Neier,“TheMilitaryTribunalsonTrial”, NewYorkReviewofBooks,14 co.uk/1/hi/uk_politics/4759317.stm “UK callsforGuantanamo closure”,BBCNews,10May2006,http://news.bbc. Secretary, TheWhiteHouse,15May2009. “Statement ofPresidentBarackObamaonMilitary Commissions”,OfficeofthePress 34 He saidHewouldhe also work with 36 Later that year the US US the year that Later 35

be uncomfortable with the idea that defendants should face the apparent infringement of national sovereignty frequently military tribunals that will inevitably be associated with outweighs any advantage in killing suspected al-Qaeda Guantanamo Bay and the record of President Bush’s “war officials. Outside a region of armed conflict, most European on terror”. But if the European Union establishes a dialogue lawyers would regard targeted killings as illegal unless they on principles for counterterrorism with the United States it were necessary to prevent an imminent risk of loss of life. In may be able to exert some influence to limit the use of these 2002, Swedish foreign minister Anna Lindh described a US commissions. More significantly, while the EU should not missile attack on six alleged al-Qaeda operatives in Yemen as attempt to prescribe the form of legal process that the United “a summary execution that violates human rights”.38 States uses to prosecute terrorist suspects, it can insist that any US proceedings comply with international standards of Yet even on this contested subject, the divide between EU due process. member states and the United States may not be as wide as it first appears. Most known or acknowledged targeted strikes EU officials should emphasise to their US counterparts that a carried out by the United States have occurred in Pakistan common framework for counterterrorism will only be possible and are arguably connected to a recognisable armed conflict if all trials of terrorist suspects conducted by the United States, that stretches across the Afghanistan/Pakistan border. including those before military commissions, meet these European officials generally acknowledge that some Taliban standards. The European Union and the United States should and al-Qaeda personnel in Pakistan direct or participate in be able to agree that anyone suspected of a terrorist offence armed attacks against the Afghan state and US and NATO should be entitled to a fair trial before an impartial and forces. In such cases, the primary legal question, in the eyes regularly constituted court offering key procedural guarantees, of at least some European governments, is one of territorial including the presumption of innocence, the right to be tried sovereignty and whether Pakistan has consented to the use of in one’s presence, the right to call witnesses and to cross- force.39 Often there can be ambiguity about whether a state examine the witnesses called by the prosecution, the right has in fact agreed to an attack on its soil; states sometimes not to be forced to testify against oneself, the inadmissibility give consent in private while protesting in public. Some US of evidence derived from torture or cruel treatment, and the experts believe that Pakistan has given permission for drone right to have the sentence pronounced publicly. If the revised attacks and provided intelligence to support many of them.40 military commissions comply with these rules, they should not prevent the European Union and the United States from Outside regions of armed conflict, Europeans would look to reaching agreement on a new framework of principles, even human rights principles to regulate the question of when a if European states continue to regard their use as ill-advised. state can kill individuals it alleges to be terrorists. Human rights rules impose strict limits on the use of lethal force by the state, but as set out in the European Convention on Targeted Killing Human Rights they do allow the state to shoot to kill in some circumstances: when the use of force is no more than The use of targeted killings remains probably the greatest absolutely necessary in defence of any person from unlawful point of difference between Europe and the United States violence, to effect a lawful arrest, or in action lawfully taken in the field of counterterrorism. The United States claims for the purpose of quelling a riot or insurrection. There might the right to kill individuals whom it believes to be terrorists be room for future discussion about whether the use of armed in situations anywhere in the world where they cannot be force to suppress international terrorist organizations could arrested. It also implicitly claims a right to kill innocent ever qualify as action against a global insurrection. bystanders during such an operation, in line with the principle of proportionality established in the law of armed conflict. 37 However it remains unlikely that European states would be As discussed above, these killings may involve the use of force willing to endorse any principle that authorized the killing of on another state’s territory without its consent, if the United suspected terrorists outside zones of armed conflict. Equally, States believes that state is unable to prevent terrorist activity there is no sign that the United States is prepared to give up itself. President Obama has already authorized strikes from the option of using targeted strikes in such circumstances. For pilotless drones against al-Qaeda officials in Pakistan. The these reasons, and because of the ambiguity that surrounds Bush administration carried out strikes in places such as US use of targeted strikes, it may not yet be possible to forge Yemen where no armed conflict, as traditionally understood, a transatlantic consensus on this issue. was taking place.

Many European officials believe that such strikes carried out without the authorization of the country involved are unlawful. They also point out that popular opposition generated by civilian casualties, the danger of misdirected attacks, and

38 Brian Whitaker & Oliver Burkeman “Killing Probes the Frontiers of Robotics and 37 The principle of proportionality prohibits parties to an armed conflict from carrying Legality”, The Guardian, 6 November 2002. out attacks that may be expected to cause civilian death or injury, or damage to 39 ECFR interviews with European security officials, November & December 2008. civilian objects, that would be excessive in relation to the anticipated military 40 Jackie Northam, “Drone Attacks in Pakistan Under Review”, NPR, 2 February 2009, advantage of the attack. http://www.npr.org/templates/story/story.php?storyId=100131283. 9 10 ECFR/13 May 2009 www.ecfr.eu Beyond the “War on Terror” A Declaration of Common Principles 42 41  This statement, which could be described as an ‘EU-US ‘EU-US an as described be could which statement, This The declaration should state explicitly that it does not modify In June 2004, following the Madrid bombings, the European Terrorism Strategy, that Europe and the United States States United the and Europe that Strategy, Terrorism It would be important in the text to avoid any suggestion suggestion any avoid to text the in important be would It Union and the United States to reach agreement on a core a on agreement reach to States United the and Union Union and the United States issued a joint ‘EU-US Declaration DeclarationonEssential Principles inCombating Terrorism’, Nowthatthe far-reaching claims theofBush administration armed conflict and law enforcement, in recognition of the the of recognition in enforcement, law and conflict armed both encompassing terrorism, international against action of spectrum the across apply would principles the above, and might allow for the development of agreed interpretations against it. and reaffirm the signatories’ determination to cooperate fully including measures judicial and preventive of range wide a and manifestations. It could also express a European and US couldpursued.be Overtime, this framework couldform the of the law. As outlined in the discussion of policy areas areas policy of discussion the in outlined As law. the of conflict has been met. there where threats new complex of face the in consistency different treaty obligations and interpretations of the law. law. the of interpretations and obligations treaty different on Combating Terrorism’ at the end of their annual annual their of end the at Terrorism’ Combating on commitmentto combat terrorism in abalanced way through enhanced toward directed primarily was text its as law, of or supplant any existing legal obligations, that it does not not does it that obligations, legal existing any supplant or within which discussions on remaining areas of difference difference of areas remaining on discussions which within represent an attempt to break away from counterterrorism from away break to attempt an represent reaffirm, in line with the United Nations Global Counter- Global Nations United the with line in reaffirm, may be disagreementbemay aboutwhetherthresholdthe armed of much more comprehensive and fundamental declaration. declaration. fundamental and comprehensive more much military operations where appropriate and legally justified, justified, legally and appropriate where operations military to the importance of respecting human rights and the rule rule the and rights human respecting of importance the to involved. irrespectiveprecisequalificationlegalsituationthethe of of thattheEUand the USare fully committed towork through thatcurrently applicable lawswerebeingweakened through thatEurope and the United States intend to follow. It should set of guiding principles for the fight against terrorism. These summit. standardsbeingdeveloped throughUnitedtheNations, and seeking the lowest common denominator between states with should set out in clear and concise form the central principles have been removed, it should be possible for the European the for possible be should it removed, been have principles would provide a basic framework of consensus consensus of framework basic a provide would principles practical cooperation. It should now be possible to agree a agree to possible be now should It cooperation. practical unequivocally and strongly condemn terrorism in all its forms fact that some fundamentalsomethatfact rulesshouldgovern state action basis for an emergingbasisanfor transatlantic standardbest practiceof  violence”, InternationalReviewoftheRedCross, Vol.87No.858,2005,pp.375-391. for internment/administrativedetentioninarmed conflictandothersituationsof For acomparableapproach,seeJelenaPejic, “Proceduralprinciplesandsafeguards 10760/04, 26June2004. “EU-US Declarationon CombatingTerrorism”,CounciloftheEuropean Union, 42 41 41 The document made only a passing reference reference passing a only made document The This would have the advantage of providing providing of advantage the have would This Agenda, agreed at a high-profile international conference conference international high-profile a at agreed Agenda, 44 43  European Union and the United States could work to reverse EU-US summit following the completion of the American American the of completion the following summit EU-US European governments and publics may have different views Ideally,a declaration of principles could be issued at the first Pakistan, Uzbekistan, Saudi Arabia and Afghanistan. about how these policies will be implemented. By engaging Byimplemented. be will policies these how about importantdecisionsmanytaken yet notadministration has about whether President Obama has struck the right balance at the forefront of global efforts to define appropriate appropriate define to efforts global of forefront the at allianceincombating violent extremism. publiclyA declared the out setting policy, of statement forward-looking a as presented be should it Instead area. this in proceduresand Counterterrorist officials in several European capitals, capitals, European several in officials Counterterrorist United the and Union European the by espoused values declaration during Spain’s presidency of the European Union fundamental with line into policy US bring to concern compromiseEuropean standards, by appearing to accept US one of the less-notedtheterror”,of oneon“war resultsthewhereby of of the rule of law. example to the rest of the world and put Europe and America way valuable a be would principles common of declaration an provide and years, recent of controversies and divisions of enhancing the image and legitimacy of the transatlantic transatlantic the of legitimacy and image the enhancing of organized by the Club of Madrid in 2005.Madridin ofClub theorganized by with the new administration, the European Union will gain will UnionEuropeanadministration, the new the with would help take forward the recommendations in the Madrid multilateral institutions to strengthen international rules rules international strengthen to institutions multilateral the Bush administration’s policies gave rise to or encouraged task force review process, which will take place under the the under place take will which process, review force task countriestheEU andtheUnited States continue disagree.to similar practices among US counterterrorism allies such as such counterterrorismallies US amongpractices similar interpretation with the United States to secure the important states member EU development.their shaping in influence should be willing to overlookwillingremainingsometoshouldbe differences of his Moreover, predecessor. his from change significant this of argument the But politics. domestic and security national US rights, human of demands the between far so interviewed for this policy brief, unanimously agreed that a thatunanimouslyagreedbrief, policy this interviewed for al-Qaeda. against battle ideological the in asset important standards for responding to new forms of terrorism. This This terrorism. of forms new to responding for standards humanitarian law. rnils f nentoa lw ad hs ersn a represent thus and law, international of principles genuine a display actions early Obama’s that is brief policy where trials military or detention as such areas in policies principles for counterterrorism that best accord with the the with accord best that counterterrorism for principles Spanish presidency in the spring of 2010. The signing of a of signing The 2010. of spring the in presidency Spanish SomeEuropeans mightworrydeclaration thatsucha would Such a declaration would help to draw a line under the the under line a draw to help would declaration a Such internationalenshrinedandStateshumanrightsandlaw in framework of principles could also provide a powerful powerful a provide also could principles of framework benefitsharedaof commitment worktotogether supportin  cooperation. steps that would represent a comprehensiveand responseSecurity toorganised terrorism by basedthe Club on internationalof MadridThe Madrid in March Agenda, 2005, produced recommended at the a numberinternational of summit on Democracy, Terrorism Ahmed Rashid,DescentintoChaos , (AllenLane,2008)pp. 306-12.

See http://www.clubmadrid.org/cmadrid/index.php?id=543. 43 In this way, theway, this In 44 would have particular resonance as Spain has suffered the early April, ministers agreed to work towards an EU response most destructive terrorist attack of any European country. to the closure of Guantanamo and tasked Coreper to present a proposal on an EU framework for accepting detainees. Working towards an agreement with the United States will Ministers specified that this framework would involve require EU member states to spell out their own common decisions taken on a case-by-case basis by individual member vision of essential principles for the full spectrum of states, based on comprehensive information and intelligence counterterrorist operations. The primary challenge for the provided by the United States.46 A decision on establishing EU will not be to resolve entrenched differences between this common framework is due to be taken at a JHA Council EU states—such differences as have emerged are mostly meeting in early June. concerned with narrower operational questions—but to undertake the kind of systematic appraisal of the framework In 2009, the United Kingdom has accepted a former UK for counterterrorism that EU states have shirked so far. To resident from Guantanamo and France has taken an Algerian do this, and to resolve any disagreements that might appear citizen who has family members living in France. Other EU in the process, the European Union should launch its own countries that have said they will consider accepting detainees internal review. include Portugal, Spain, Ireland, Italy, Lithuania and Belgium; EU member states that have declared they do not expect to This review should be driven forward by the Czech and take any of the remaining prisoners include the Czech Republic, incoming Swedish presidencies. It should be discussed in Austria, Poland, the Netherlands and Sweden. the Committee of Permanent Representatives (Coreper), with input from the counterterrorism coordinator, from The situation in Germany appears particularly complicated. the Council Working Group on Public International Law In the past the foreign minister, Frank-Walter Steinmaier, (COJUR), and from the European Commission directorates- has said that Germany should consider taking some of the general for Justice, Freedom and Security and External detainees, while the interior minister, Wolfgang Schäuble, Relations. Sweden, which has a longstanding interest in has indicated he is reluctant to accept any. However, human rights, might make it a priority to establish a new and according to news reports, the United States has now more principled basis for the counterterrorism policies of suggested that Germany take several of the Chinese Muslim EU countries and the United States. Spain might also take a Uighurs remaining at Guantanamo, and this has raised an close interest as the country that would host the prospective additional concern that it might affect Germany’s relations declaration in 2010. The new European Parliament should be with China.47 The United States has also suggested that it involved in the discussions and should encourage member may allow some of the men—perhaps including a number of states to endorse the idea and work with the US administration. Chinese Uighurs—to settle in the United States, which may While the review is conducted, EU officials should also hold help reduce opposition in Europe to accepting detainees. regular meetings with their US counterparts to ensure that European and American thinking is coordinated. Accepting former Guantanamo Bay detainees for resettlement would involve a degree of security risk and could present political and legal complications in some countries. Any Closing Guantanamo: Why Europe country that accepted detainees would have to integrate them Should Help into society and perhaps keep them under surveillance. But by agreeing to do so, European countries would contribute President Obama’s announcement that he would close to resolving an injustice that European countries have Guantanamo Bay was the first and most visible sign of a new frequently criticised. They would also show their commitment approach to counterterrorism. Obama has set an ambitious to re-establishing a counterterrorism alliance with the United target in promising to close Guantanamo Bay within a year States based on international law and human rights, and and has said that he hopes to resolve the status of as many gain influence with the United States in devising common detainees as possible before that time. He has also made it standards in this area. EU member states should make sure clear that he would like European countries to assist in this that their decisions about resettling Guantanamo detainees process by resettling some of the estimated 50-60 detainees reflect these broad strategic concerns as well as narrower whom the United States no longer wants to detain but who issues of domestic security. cannot be returned to their own countries because they might be abused. Although the decision on accepting individual prisoners will be taken by member states, it is important that the Following an initiative by the Portuguese foreign minister, EU succeeds in coming up with a common position on the European member states discussed the issue at a General subject. Establishing a single framework for negotiations with Affairs and External Relations meeting in January and the United States would eliminate the danger of individual subsequently at two Justice and Home Affairs (JHA)/Mixed European countries reaching bilateral arrangements with Committee meetings.45 At the Mixed Committee meeting in

46 “Press Release: 2936th Council meeting, Justice and Home Affairs”, Council of the European Union, No. 8478/09, 6 April 2009. 45 The Mixed Committee is made up of the EU countries plus Iceland, Liechtenstein, 47 “German Foreign Minister Opposes Taking Uighur Guantanamo Inmates”, Spiegel Norway and Switzerland, which are associated to the Schengen Agreement. Online, 18 May 2009. 11 12 ECFR/13 May 2009 www.ecfr.eu Beyond the “War on Terror” At the same time, the EU should agree a common position common a agree should EU the time, same the At 11, 2001, Europe and the United States still lack a fully fully a lack still States United the and Europe 2001, 11, European Union should strongly urge the United States to to States United the urge strongly should Union European The EU should immediately begin an internal process of of process internal an begin immediately should EU The The European Union and the United States should begin begin should States United the and Union European The The declaration should set out a list of guiding principles principles guiding of list a out set should declaration The Conclusion Law (COJUR) and the US State Department’s legal advisor, legalDepartment’s State US the and (COJUR) Law assessing core principles for combating terrorism, and and terrorism, combating for principles core assessing andthatpubliclycanbe affirmedmodel aforconfrontingas a shared transatlantic understanding on issues that have have that issues on understanding transatlantic shared a for framework common a sets EU the if importantly, Most dialogue between the EU Working Group on International International on Group Working EU the between dialogue establish contacts with the United States to ensure that there detainees could give a strong boost to a wider discussionwideraon strongtoboostdetainees a give could divergent standards and requirements. Because of individual on resettling detainees from Guantanamo, and encourage encourage and Guantanamo, from detainees resettling on of fundamental human rights in overseas military operations. humanetreatmentofcustomaryarmed conflictofpart in as different aspects, and that it must always be conducted conducted be always must it that and aspects, different other countries or special visa arrangements to restrict the restrict to arrangements visa special or countries other entitledhavetheirtocasereviewed throughindependentan reaffirmcommitmentrespectitsfundamentalto guarantees office, left team Bush’s President when halted was which new security threats within the framework of the rule of law. recasting the struggle against terrorism. remained unresolved since 2001. negotiationswiththeUnited States, theprocess resettlingof within a multilateral framework and in accordance with with accordance in and framework multilateral a within fundamental ondeclaration public a draftingtowards work member states to take individuals, where appropriate, as as appropriate, where individuals, take to states member make clear that the fight against terrorism comprises manycomprisesterrorism againstfight the that clear make that represents the best of European and American values, values, American and European of best the represents that terrorism. In this way, it could help in the development of of development the in help could it way, counter- this In to terrorism. applicable structures legal and principles the travel of former detainees in some cases. the Spanish presidency in 2010. This declaration should should declaration This 2010. in presidency Spanish the is Europeanis inputintoAmericanthe taskforcereviews. The should be resumed under the new administration. The The administration. new the under resumed be should that EU states and the United States undertake to observe, observe, to undertake States United the and states EU that shared understanding of how to respond to terrorism. The terrorism.to respond to how understandingof shared international law and fundamental human rights. such decisions may require the sharing of informationwith of sharing the require maydecisions such strong collective interest in any decision to resettle detainees; includingthat: any individual detained as asecurity threat is part of a wider understanding between the EU and US on on US and EU the between understanding wider a of part placeinterpretationthe clarificationUS seek of onand law, move to chance the offers Obama Barack of presidency principles for confronting terrorism, to be signed under under signed be to terrorism, confronting for principles Seven and a half years after the attacks of September September of attacks the after years half a and Seven forward to a transatlantic consensus on counterterrorism counterterrorism on consensus transatlantic a to forward freedom of movement within the Schengen area, there is also a United States to set aside the legacy of their divided response armed conflict, public emergency or where ordered by the UN a criminal offence or sentenced except after a trial before a before trial a after except sentenced or offencecriminal a guarantees. can only be ordered on an individual basis in situations of of situations in basis individual an on ordered be only can confronting it. review; security detention is an exceptional measure, and and measure, exceptional an is detention security review; regularly constituted court that meets all essential procedural inhumansubjectedcruelshouldandtorturebeoneorto no to international terrorism, and deepen their cooperation cooperation their deepen and terrorism, international to be would they believing for grounds substantial are there treatment; no one should be transferred to any country where terrorism poses and the importance of a principledimportanceinastand terrorism theofandposes in a way that recognizes both the severity of the threat that threat the of severity the bothrecognizes that way a in of convicted be should one no tortured; being of danger in hearing with the least possible delay, and thereafter to regular Such an approachanSuchEuropeanwouldallow thetheUnion and secretdetention;inheld should be Security oneCouncil; no Annex: An overview of international laws The International Covenant on Civil and Political mentioned in the text Rights (ICCPR) was adopted by the UN General Assembly in 1966 and entered into force in 1976. It is based on the ideas of the Universal Declaration of Human Rights (which did The Geneva Conventions of 1949 are the cornerstone of not have binding legal force) and includes safeguards against contemporary international humanitarian law (IHL), also arbitrary deprivation of life, torture, and arbitrary arrest or known as the law of armed conflict. Every country in the world detention, along with rights to freedom of expression, freedom is a party to them. The four Conventions cover the treatment of assembly and many others. Parties to the Covenant may of wounded and sick members of the armed forces on land; derogate from (that is, suspend the application of) some wounded, sick and shipwrecked members of the armed forces provisions in time of public emergency, but the prohibition at sea; prisoners of war; and civilians in time of war. The of arbitrary deprivation of life and the prohibition of torture Geneva Conventions apply during an armed conflict between are non-derogable. The ICCPR obliges each state that is party two or more states that are party to them—effectively, during to it to observe its rules with respect to “all individuals within any international, i.e. inter-state, armed conflict. its territory and subject to its jurisdiction”. The UN Human Rights Committee has interpreted this to apply to all people Common Article 3 of the Geneva Conventions stands within a state’s power or effective control, but the United apart from the rest of the Conventions because it alone States has consistently argued that the ICCPR only applies to applies during armed conflicts that are “non-international”, the treatment of individuals within its territory. The ICCPR that is conflicts in which at least one of the opposing forces has been ratified by 152 countries; those that are not party is a non-state armed group (or a collection of such groups). include Burma, China, Cuba, Pakistan and Saudi Arabia. According to the International Committee of the Red Cross (ICRC) the armed conflict in Afghanistan, which was initially The Convention against Torture was adopted by the UN international in nature, is now governed by Common Article General Assembly in 1984 and came into force in 1987. It 3, as it pits the Afghan government and multinational forces obliges all states that are party to it to prevent acts of torture against the non-state forces of the Taliban and al-Qaeda. in any territory under their jurisdiction, and not to return any Common Article 3 sets out basic humanitarian rules that individual to a country “where there are substantial grounds govern the treatment of all persons in the hands of the for believing that he would be in danger of being subjected to adversary, including protection against murder, torture, and torture”. European countries interpret this to forbid returns humiliating and degrading treatment. to countries where there is a “real risk” of torture, while the United States interprets it to apply when it is “more likely than The Additional Protocols of 1977 were introduced to fill a not” that an individual will be tortured. The Convention also number of perceived gaps in the Geneva Conventions. The First requires states to investigate anyone suspected of committing Additional Protocol applies in international armed conflict and torture, and also requires them to prevent any acts of cruel, sets out additional protections for civilians, including a set of inhuman or degrading treatment. The Convention against “Fundamental Guarantees” (in Article 75) that apply to anyone Torture has been ratified by 136 countries. detained by the opposing side. The Second Additional Protocol establishes a more limited set of rules for civilians in non- The European Convention on Human Rights (ECHR) international armed conflicts. The First Additional Protocol was adopted in 1950 under the auspices of the Council of has been ratified by 168 countries and the Second Additional Europe. All EU member states are party to it. It is enforced Protocol by 164 countries. All EU member states are party to by the European Court of Human Rights, which can hear both Protocols. The United States is not a party to the Protocols. cases brought by individuals and can require states to offer a remedy for any violation of rights. The ECHR protects Customary law is an important source of IHL. It consists of everyone within the jurisdiction of states that are party to those rules that states generally follow out of a sense of legal it, and a complex body of case law has evolved regarding the obligation even when they are not bound to do so by any treaty. circumstances in which it can also apply outside a state’s Much of the First Additional Protocol, such as its rules on territory. Although the question is still disputed, there is distinguishing between combatants and civilians in the conduct at least widespread agreement that the ECHR protects of military operations, has acquired the status of customary individuals held in a regular place of detention overseas law; even countries that are not party to the Protocol, like the (for instance, Iraqi prisoners held at a British army base in United States, recognise these rules as binding. However the Basra). The ECHR allows derogation in time of war or other Bush administration caused some controversy when it refused public emergency threatening the life of the nation, but to repeat assurances given by earlier US administrations that does not allow derogation from the right to life (unless as a the “Fundamental Guarantees” of the First Additional Protocol result of a lawful act of war) , from the prohibition of torture, formed part of customary law. Customary law is also important the prohibition of slavery, and the right not to be punished in internal (or “non-international”) conflicts, where applicable without law. treaty law may be limited. There is no definitive codification of customary law; the ICRC published its views on the body of customary IHL in 2005.

13 14 ECFR/13 May 2009 www.ecfr.eu Beyond the “War on Terror” does not make grants to individuals or institutions. group. ECFR works in partnership with other organisations but Bulgarian Communitas Foundation and the Italian UniCredit Internacionales y el Diálogo Exterior), Sigrid Rausing, the Spanish foundation FRIDE (La Fundación para las Relaciones ECFR is backed by the Soros Foundations Network, the • • • that define its activities: ECFR has developed a strategy with three distinctive elements European values based foreign policy. across Europe on the development of coherent and effective objective is to conduct research and promote informed debate first pan-European think-tank. Launched in October 2007, its The A B media outlets. of ECFR’ gatherings in EU capitals and outreach to strategic policy reports, private meetings and public debates, ‘friends focus. ECFR’s activities include primary research, publication of its objectives through innovative projects with a pan-European researchers and practitioners from all over Europe to advance ECFR has brought together a team of distinguished A communications. offices are platforms for research, debate, advocacy and plans to open offices in Rome, Warsaw and Brussels. Our Berlin, London, Madrid, Paris and Sofia. In the future ECFR ECFR, uniquely among European think-tanks, has offices in A Ahtisaari, Joschka Fischer and Mabel van Oranje. within their own countries. The Council is chaired by Martti and feedback on policy ideas and help with ECFR’s activities thematic task forces, members provide ECFR staff with advice meets twice a year as a full body. Through geographical and from the EU’s member states and candidate countries - which politicians, decision makers, thinkers and business people distinguished Council of over one hundred Members - A OUT distinctive research and policy development process. physical presence in the main pan- E uropean

EC E uropean F R C ouncil on Foreign C ouncil. ECFR has brought together a R EU elations member states. (ECFR) is the ( Jan former PrimeMinister Fund; International Monetary Director, EuropeanDepartment, M Management Consulting Founder, AICAndroschInternational H European Convention and VicePresidentofthe Former PrimeMinister Giuliano former President Crisis ManagementInitiative; Chairman oftheBoard, M Democratic Party spokesperson fortheSocial Committeeandforeignpolicy Affairs Deputy ChairmanoftheForeign U Nordic A/S A/S andChairmanofBavarian President andCEOofA.J.Aamund A countries. candidate and states member EU the from figures cultural and activists leaders, business intellectuals, public ministers, and parliamentarians former and current commissioners, European presidents, ministers, prime former are Relations Foreign on Council European the of members Among Director, AspenInstituteItalia M Minister andForeign Foundation; formerPrime President, Italianieuropei M Council oftheEU Affairs, and Politico-Military Director GeneralforExternal ( R Member ofEuropeanParliament D former StateSecretary Center, University; Harvard Associate, Weatherhead N MP; formerHomeSecretary C California Catalunya andUniversityofSouthern Professor, UniversitatObertade Manuel Castells(Spain) Development Cooperation Minister forInternational Gunilla Writer andacademic I former PrimeMinister(Taoiseach) Ambassador totheUSA; European Commission’s John Bruton ( former EUCommissioner Vice PresidentoftheSenate; E Bulgaria Ltd. and PresidentofVenture Equity Founder, CommunitasFoundation S former PrimeMinister President, BankPekaoSA; an Buruma ( U U mma Bonino ( vetoslav Bojilov (Bulgaria) obert harles sger aniel rban annes icola arek Belka (Poland) artti arta assimo nited nited K rzysztof Bielecki (Poland) A A D C A C C C amund ( K K C htisaari (Finland) lase ( assù ( hlin ( A ohn-Bendit (Germany) ooper A arlsson ( ingdom) ingdom) larke D ndrosch ( mato ( ’ A T S lema ( I S reland) he I weden) taly) weden) I

taly) D I N S taly) enmark) weden) etherlands) A I taly) ustria) Joschka Fischer (Germany) Foreign Minister President, ChamberofDeputies;former Gianfranco Fini ( Musician andProducer Brian former ForeignMinister Chairman, Bankinvest; ( U newspaper Diena (BBSA); formerEditor-in-chief ofdaily Chairperson, Baltic to Black Sea Alliance S Member ofEuropeanParliament A President, DEMOSHungary T of theUnitedStates(Bratislava) Director, GermanMarshallFund Pavol Member of European Parliament (Confindustria) – Brussels office; former Director, Confederation of Italian Industry Gianfranco Jean- European Commission former VicePresidentofthe President, FriendsofEurope; E (Germany) CERI (Sciences-PO) Research Directoremeritus, Pierre former DefenceMinister Chairman, DefenceCommission; H for DemocraticTransition President andCEO,InternationalCentre I Minister ofEconomicsandTechnology K President JoséManuelBarroso Adviser toEuropeanCommission Guimaraes (Portugal) Fernando Operations attheUN forPeacekeeping Secretary-General (New York University);formerUnder- Center onInternationalCooperation Senior Fellow, BrookingsInstitutionand Jean-Marie Guéhenno(France) Institute, Brussels Executive Director, OpenSociety ( H former ForeignMinister Calouste GulbenkianFoundation; Trustee totheBoardof (Portugal) T London SchoolofEconomics Emeritus Professor, ( A Oxford University Professor ofEuropeanStudies, ( T former ForeignMinister Speaker oftheParliament; Jaime Gama (Portugal) and vice-Chancellor Former ForeignMinister former PrimeMinister Member ofEuropeanParliament; stván Gyarmati ( D U U U eresa Patricio Gouveia tienne ibor imothy Garton armite arl- ndrew nthony Giddens ffe ans eather Grabbe enmark) nited nited nited T E D L H E heodor zu Guttenberg llemann-Jensen D H uc no ( essewffy ( ækkerup ( emeš ( K K K D assner (France) D E ingdom) ingdom) ingdom) lerte ( avignon (Belgium) D uff ( A

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Annette Heuser (Germany) Dominique Moisi (France) George Robertson Shirley Williams Executive Director, Bertelsmann Senior Adviser, IFRI (United Kingdom) (United Kingdom) Foundation Washington DC Former Secretary General of NATO Pierre Moscovici (France) Professor Emeritus, Kennedy School of Government and former Leader Diego Hidalgo (Spain) MP; former Minister Albert Rohan (Austria) of the Liberal Democrats Co-founder of Spanish for European Affairs Former Secretary General newspaper El País; President, FRIDE for Foreign Affairs Kalypso Nicolaïdis Carlos Alonso Zaldivar (Spain) Ambassador to Brazil Michiel van Hulten (Greece/France) Dariuzs Rosati (Poland) (The Netherlands) Professor of International Relations Member of European Parliament; Managing Director, Burson-Masteller former Foreign Minister and Director of European Studies Brussels office; former Member of Centre, University of Oxford European Parliament Adam D. Rotfeld (Poland) Christine Ockrent (Belgium) Chairman of the UN Secretary Anna Ibrisagic (Sweden) CEO, Audiovisuel Extérieur General’s Advisory Board on Member of European Parliament de la France Disarmament Matters; former Foreign Minister Jaakko Iloniemi (Finland) Andrzej Olechowski (Poland) CEO, UNIFIN; former Executive Former Foreign Minister Daniel Sachs (Sweden)

Director, Crisis Management Initiative CEO, Proventus Dick Oosting Wolfgang Ischinger (Germany) (The Netherlands) Pierre Schori (Sweden) Chairman, Munich Security Europe Director, International Director General, FRIDE; former SRSG to Conference; Global Head of Centre for Transitional Justice Cote d’Ivoire

Government Affairs Allianz SE Mabel van Oranje Giuseppe Scognamiglio (Italy) Lionel Jospin (France) (The Netherlands) Head of Institutional and Former Prime Minister CEO, The Elders International Relations, UniCredit

Mary Kaldor (United Kingdom) Marcelino Oreja Aguirre Narcís Serra (Spain) Professor, London School (Spain) Chair of CIDOB Foundation; former Vice President of Economics Member of the Board, Fomento de Construcciones y Contratas; Glenys Kinnock Elif Shafak (Turkey) former EU Commissioner Writer (United Kingdom) Member of European Parliament Leoluca Orlando (Italy) Wolfgang Schüssel (Austria) MP and President, Sicilian Chairman, Parliamentary Group Olli Kivinen (Finland) Renaissance Institute Writer and columnist of the Austrian People’s Party; Cem Özdemir (Germany) former Chancellor Gerald Knaus (Austria) Leader, Bündnis90/Die Grünen Karel Schwarzenberg Chairman, European Stability (Green Party) and Member of Initiative and Open Society Fellow (Czech Republic) the European Parliament former Foreign Minister

Caio Koch-Weser (Germany) Tommaso Vice Chairman, Deutsche Bank Group; Aleksander Smolar (Poland) former State Secretary Padoa-Schioppa (Italy) Chairman of the Board, President, Notre Europe; Stefan Batory Foundation Rem Koolhaas former chairman of IMF and former Minister of Economy and Finance George Soros (Hungary/US) (The Netherlands) Chairman, Open Society Institute Architect and urbanist; Professor at the Graduate School of Design, Harvard Ana Palacio (Spain) Senior Vice President for Dominique Strauss-Kahn University International Affairs and Marketing, (France) AREVA; former Foreign Minister Managing Director, Ivan Krastev (Bulgaria) Chair of Board, Centre for International Monetary Fund; Liberal Strategies Simon Panek (Czech Republic) former Finance Minister Chairman, People in Need Foundation Alexander Stubb (Finland) Mart Laar (Estonia) MP; former Prime Minister Foreign Minister Chris Patten Miroslaw Lajcˇák (Slovakia) (United Kingdom) Michael Stürmer (Germany) Chief Correspondent, Die Welt Foreign Minister; former High Chancellor of Oxford University Representative and EU Special and co-chair of the International Crisis Group; former EU Commissioner Helle Thorning Schmidt Representative in Bosnia Herzegovina (Denmark) Pascal Lamy (France) Diana Pinto (France) Leader of the Social Historian and author Democratic Party Honorary President, Notre Europe and Director-General of WTO; Loukas Tsoukalis (Greece) former EU Commissioner Jean Pisani-Ferry (France) Director, Bruegel and Professor Professor, University of Athens at Universite Paris-Dauphine and President, ELIAMEP Mark Leonard (United Kingdom) Erkki Tuomioja (Finland) Executive Director, European Ruprecht Polenz (Germany) MP and Chairman of the Bundestag MP; former Foreign Minister Council on Foreign Relations Foreign Affairs Committee Vaira Vike- Freiberga (Latvia) Juan Fernando Former President Lydie Polfer (Luxembourg) López Aguilar (Spain) Member of European Parliament; Head of the Spanish delegation to the former Foreign Minister Antonio Vitorino (Portugal) PACE; former Minister of Justice Lawyer; former EU Commissioner

Andrew Puddephatt Helena Luczywo (Poland) (United Kingdom) Gijs de Vries (The Netherlands) Deputy Editor-in-chief, Director, Global Partners Member of the Board, Netherlands Gazeta Wyborcza Court of Audit; former EU Counter- & Associated Ltd. Terrorism Coordinator Adam Lury (United Kingdom) Vesna Pusic´ (Croatia) Director, Menemsha Ltd; MP and Deputy Speaker of Stephen Wall (United Kingdom) former advisor to Lord Browne Chairman, Hill and Knowlton Parliament and Professor of (Public Affairs EMEA); former Sociology, University of Zagreb Alain Minc (France) advisor to Tony Blair Head of AM Conseil; Sigrid Rausing former chairman, Le Monde Andre Wilkens (Germany) (United Kingdom) Head of Strategic Communications, Founder, Sigrid Rausing Trust Nickolay Mladenov (Bulgaria) UNHCR Member of European Parliament

15 16 ECFR/13 May 2009 www.ecfr.eu Beyond the “War on Terror” Acknowledgements author the About Anthony Dworkin Anthony Contact: [email protected] Cambridge Grove,LondonW60LE,UK. 5th FloorCambridgeHouse,100 Foreign Relations(ECFR), Published bytheEuropeanCouncilon ISBN: 978-1-906538-12-5 © ECFRMay2009. European CouncilonForeignRelations. requires thepriorwrittenpermissionof and non-commercialuse.Anyotheruse publication exceptforyourownpersonal circulate inanywaythecontentfromthis You maynotcopy,reproduce,republishor European CouncilonForeignRelations. Copyright ofthispublicationisheldbythe only theviewsofitsauthors. Council onForeignRelations,represents paper, likeallpublicationsoftheEuropean does nottakecollectivepositions.This The EuropeanCouncilonForeignRelations Jeremy Shapiro, Hans Wolters and Stephanie Yates made made Yates Stephanie and Wolters Hans Shapiro, Jeremy This policy brief benefited from the advice and suggestions and advice the from benefited brief policy This Human Rights Watch. Diego Hidalgo, Nickolay Mladenov, Dick Oosting, Mabel Mabel Oosting, Dick Mladenov, Nickolay Hidalgo, Diego Daniel Korski, Alba Lamberti, Mark Leonard, Katherine Parkes, Should KnowShould van Oranje,van authorTheVries.Gijsanddewould also like to Council on Foreign Relations, working in the area of of area the in working Relations, Foreign on Council valuable contributions, as did external editor Hans Kundnani. editor of the British journal journal British the of editor conflict. He was co-editor of non-governmental a Project, War of Crimes the of director executive also is He justice. and rights human democracy, of severalCouncilofECFR Members, including CharlesClarke, organisation that promotes understanding of international international of understanding promotes that organisation thank Ronald Dworkin, Aryeh Neier and Sir David Omand David Sir and Neier Aryeh Dworkin, Ronald thank the Terrorism/Counter-Terrorism Advisory Committee of of Committee Advisory Terrorism/Counter-Terrorism the humanitarian law and its application in contemporary armed for comments on earliercommentsdrafts.foronWithinThomasECFR, Klau, (Norton, rev. ed. 2007). He is a contributinga is He 2007).ed. rev.(Norton,

is a senior policy fellow at the European the at fellow policy senior a is Crimes of War: What the Public Prospect and a member of of member a and by John Fox and Francois Godement, April 2009 (ECFR/12) A by Daniel Korski, March 2009 (ECFR/11) S (ECFR/10) by Daniel Korski, Ulrike Guerot and Mark Leonard, December 2008 R by Pierre Noel, November 2008 (ECFR/09) Beyond by Richard Gowan and Franziska Brantner, September 2008 (ECFR/08) Power at the A (ECFR/07) by Nicu Popescu, Mark Leonard and Andrew Wilson, August 2008 C by Nick Witney, July 2008 (ECFR/06) R by Andrew Wilson, February 2008 (ECFR/05) M by Daniel Korski, January 2008 (ECFR/04) A Paweł Swieboda, December 2007 (ECFR/03) Poland’s second return to by Mark Leonard and Nicu Popescu, November 2007 (ECFR/02) A by Ivan Krastev and Mark Leonard, October 2007 (ECFR/01) H N A haping e-wiring the e-energising an the Power Global Force for fghanistan: Power lso a erbivorous Powers ew World eeting v D aila EU E M A A ependence: urope’s udit of udit of edvedev: win the Peace in Georgia? O b E rder: UN le US urope’s forgotten war E urope’s f - EU EU A rom EU H T fghan he Balance of - - uman relationship

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