[New publication] ‘A vaguely defined licence to kill’: jus ad bellum and the War on Terror

In his May 2010 report to the General Assembly, then-Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston raised concerns about the ‘displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum’. In a forthcoming book chapter available on the Asser SSRN network, Asser researcher Dr Rebecca Mignot-Mahdavi and Prof. Nehal Bhuta (University of Edinburgh) reflect on the evolutions of the right of self-defence in the counter-terrorism context. 

The revisionist framework
The revisionist framework, popularised after the attacks of September 11 2001, is ‘an effort to remake the conceptual content of self-defence, at least as it applies to the use of force against non-state armed groups’. It entails ‘the preventive [and] extraterritorial, use of lethal force against individuals and non-state groups, with a geographically and temporally expansive scope’. Under this framework, requirements for lawful use of force (jus ad bellum) such as necessity and proportionality still exist but the threshold is significantly lower.

While this revisionist framework is not the law as it stands, it is fair to say that at least in some aspects, it is supported in some scholarly work, and has gained precedence not just in the US but also in the UK, Australia and France.

Recollective stories
Talking about ‘recollective stories’ of the right of self-defence, the authors reframe the discussion on the evolutions of the interpretation of the right of self-defence as a historically-embedded process. As such, the paper helps better understand how certain historical circumstances lead to the crystallisation of a certain interpretation of a norm at a certain point in time.

A ‘forever war’?
As we approach the twenty-year anniversary of the September 11 attacks, the paper importantly shows that the development of the revisionist framework over the past decades provides a sophisticated legal rationale for expanding the conditions and limits on the use of force. As Emile Simpson points out, if the enemy is a globalised network, the revisionist framework is ‘a recipe for a forever war’.

Read the book chapter

Bhuta, N. & Mignot-Mahdavi, R.
‘Dangerous Proportions: Means and Ends in Non-Finite War’, Asser Research Paper 2021-01 (SSRN), forthcoming in: Bhuta, N., Hoffman, F., Knuckey, S., Megret, F. & Satterthwaite, M. (eds.), The Struggle for Human Rights: Essays in Honour of Philip Alston, Oxford University Press (2021).

Rebecca Mignot-Mahdavi is a researcher in the Asser research strand 'Human Dignity and Human Security in International and European Law'.  Her work reflects on counterterrorism and on the evolving legal and policy capacity to deal with security threats, where new forms of non-state transnational risk, counter-risk strategy and technology are in play.

Read more 
‘Drone Programs, the Individualization of War and the Ad Bellum Principle of Proportionality’, in Lieber Series Vol. 4, Claus Kreß & Robert Lawless (eds.) Necessity and Proportionality in International Peace and Security Law (Oxford University Press, 2020)

‘Will the War on Terror Ever End?’, La Revue des droits de l’homme, Actualités Droits-Libertés, mis en ligne le 10 mars 2019, consulté le 13 mars 2019. URL: http://journals.openedition.org/revdh/6269 ; DOI : 10.4000/revdh.6269

Online advanced summer programme on terrorism, counterterrorism and the rule of law (30 August-3 September 2021)
Are you working in the field of counterterrorism or aiming to? Then check out our renowned Advanced summer programme on terrorism, counter-terrorism and the rule of law, which is coming back for the 11th time to bring together top experts, academics, and policymakers from around the world working in the field of counter-terrorism. The online summer programme will take place on 30 August – 3 September. Click here to see last year’s reviews (video) and sign up to profit from the Early Bird fee.