Targeting the "terrorist enemy" : the boundaries of an armed conflict against transnational terrorists
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Australian international law journal, Vol. 16, 2009, p. 161-187
Following the terrorist attacks of 11 September 2001, the US declared Al-Qaeda and its associates as "the terrorist enemy". Under the previous and current administrations, the US's security strategies have focused on combating this "terrorist enemy" in various ways including the so-called "war on terror" or "war with Al-Qaeda" : an armed conflict against transnational terrorists to which international humanitarian law ("IHL") supposedly applies. This article considers the notion of targeting transnational terrorists under IHL. The article addresses the issue of whether an armed conflict against terrorists exists and what sort of armed conflict it may be. It then examines whether terrorists are legitimate targets in and outside an armed conflict, drawing on the recent "Interpretive guidance on direct participation in hostilities" by the International Committee of the Red Cross. The article concludes that terrorist attacks in general do not give rise to armed conflict ; that there is no legitimate war against transnational terrorists ; and therefore, that military targeting of such transnational terrorists can only occur in limited circumstances.