Chapter

Guarding the guards in the war on terrorism

Yuval Shany

Rethinking the law of armed conflict in an age of terrorism

Lanham [etc.] : Lexington Books, 2012

p. 99-131

English

A debate on the propriety of any counterterrorism strategy should arguably address not only the substantive merits of specific acts pursued under the existing policy - that is, wether the targeted killing of dangerous terrorists, or the torture of terrorists under "ticking bomb scenarios" can ever be justified - but also the policy's institutional or second-order implications. Part I will identify three principal institutional settings in which key decisions on the war on terror are reviewed and discussed ; it is claimed that in all of those settings the executive branch is subject to insufficient oversight and that, as a result, given the executive's structural incentives, an improper application of counterterrorism norms can be expected to occur. Part II describes some of the political dynamics that cause the executive to perform inadequate right balancing, and which limit the the ability of other branches of government to correct such decisions and actions. Part III then discusses the possibility of remedying the inadequate oversight procedures which are currently in place by way of strenghtening international supervision over counterterrorism policies, clarifying the law governing counterterrorism policies - in particular, norms governing the invocation of the "armed conflict paradigm".

• Rethinking the law of armed conflict in an age of terrorism / Christopher A. Ford and Amichai Cohen