Chapter

Triggering the law of armed conflict ?

by Geoffrey S. Corn

The war on terror and the laws of war : a military perspective

Oxford [etc.] : Oxford University Press, 2015

p. 33-70

English

This chapter explores the conditions under which the law of armed conflict (LOAC) is triggered into force in given contexts of violence. Specifically, it addresses the United States’ “ambiguous relationship” with the critical predicate triggering the application of the LOAC prior to and after the attacks of September 11 2001 and the so-called global war on terror. The author explores why the US interpretation of the law-triggering equation under the Bush administration generated such criticism and controversy and how it deviated from the long-established American military policy of LOAC application. Additionally, the author reviews the criticism from international legal scholars about this American interpretation and the extension of the concept of “armed conflict”. Accordingly, Geoffrey S. Corn argues that the “global war on terror” pattern based on a military response to 9/11 - and therefore relying on LOAC, including for the treatment of detained alleged terrorists - developed by the Bush administration is erroneous. The author demonstrates his point with relevant landmark US Supreme Court rulings in this matter, such as Hamdan v. Rumsfeld, and examples from factual situations where military involvement did not always relate to “armed conflict”. Furthermore, this chapter addresses the shift with regard to the US interpretation under the Obama administration regarding the use of “wartime powers” in the struggle against Al Qaeda and explains why this shift did not eliminate any controversy from a legal scholar’s perspective. [Summary by students at the International Criminal and Humanitarian Law Clinic, Laval University]

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• The war on terror and the laws of war : a military perspective / Geoffrey S. Corn... [et al.] ; foreword by Charles J. Dunlap