The Boundaries of the Battlefield

Date: 10 & 11 January 2013

Venue: T.M.C. Asser Instituut, R.J. Schimmelpennincklaan 20-22, The Hague

On 10 and 11 January, ICCT together with the T.M.C. Asser Instituut convened a symposium on “The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism”. The event was organised in cooperation with the International Humanitarian and Criminal Law Platform, the Konrad Adenauer Stiftung, the Municipality of The Hague and the Dutch Ministry of Foreign Affairs. Twenty-eight legal experts from academia, civil society, governments, the military and multilateral organisations featured as panelists in this two-day symposium.

During the first two panels, the speakers discussed the temporal and geographical limitations of armed conflicts, followed by a panel focusing on the interaction between and possible complementarity of international humanitarian law and human rights law. The second day opened with a special panel on the legality of the use of drones and targeted killings. The symposium closed with sessions on the law enforcement approach in countering terrorism and a deliberation of the way forward, in particular, whether a new legal framework for counter-terrorism operations was necessary.

Many issues of both theoretical and practical nature were addressed and despite the often controversial character of topics debated, some common ground was found. One recurring issue was the legality of the use of drones by the United States outside the “hot

battlefields” of Afghanistan against alleged al-Qaeda members in such countries as Pakistan, Yemen and Somalia. The majority of participants concurred that drones as such are not an unlawful means of warfare, but that their current use may be not be in accordance with legal standards. Many participants believed that the concept of “naked self-defence” was counter-productive and that a new legal framework for armed conflicts against non-state actors was not needed. The participants agreed that such a third category of a “transnational armed conflict” would not add to the body of law that can be applied in conflict situations. This was mainly because fundamental principles of international humanitarian law – such as the threshold for the existence of an armed conflict, and the concepts of proportionality and necessity – would continue to apply as a matter of customary law. The speakers attributed some of the confusion in current discussions about legal frameworks in countering terrorism to the phenomenon of blurring the lines between the jus in bello and the jus ad bellum, which all urged to continue to keep separate for the proper application of the laws of armed conflict. In jus ad bellum terms, the speakers also largely agreed that a strict interpretation of the principle of imminence was necessary for the proper application of the inherent right to self-defence.

Overall, the symposium was considered a success, not least due to the innovative set up of the panel discussions: instead of consisting of individual presentations given by each panelist, a number of questions were directly debated between panelists with active input from the audience and moderators. The presence of such a diverse group of panelists and a lively audience of more than 70 individuals ensured that discussions were constructive. The Boundaries of the Battlefield symposium presented an important step forward in thinking about the legal aspects of counter-terrorism operations. On the basis of the discussions and conclusions of this meeting, ICCT Research Fellow Dr. Christophe Paulussen and Jessica Dorsey (Ph.D. Researcher at the T.M.C. Asser Institute) produced a comprehensive conference report.

• Full Conference Programme
• Conference Report

Panelists :

• William Banks, Distinguished Professor, Director Institute of National Security and Counter Terrorism, Syracuse University
• Laurie Blank, Professor Emory Law School; Director IHL Center at Emory
• Theo van Boven, Professor Emeritus International Law, University of Maastricht
• Rosa Brooks, Professor of Law, Georgetown University Law Center
• Anthony Dworkin, Senior Policy Fellow at European Council on Foreign Relations
• Ben Emmerson, UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism
• Dieter Fleck, Editor Handbook of IHL, co-editor of The Handbook of the International Law of Military Operations; formerly with the German Defense Ministry.
• Terry Gill, Professor University of Amsterdam and the Netherlands Defense Academy; Associate Professor Utrecht University; co-editor of The Handbook of the International Law of Military Operations
• Robert Heinsch, Assistant Professor, Leiden University, Director Kalshoven-Gieskes Forum on International Humanitarian Law
• Wolff Heintschel von Heinegg, Stockton Chair, US Naval War College; Professor Public International Law, European University Viadrina, Frankfurt
• Christiane Höhn, Advisor to the EU Counter-Terrorism Coordinator
• Gilles de Kerchove, EU Counter-Terrorism Coordinator
• Jann Kleffner, Head of International Law Centre and Associate Professor of International Law, Swedish National Defence College; Assistant Professor of Law, University of Amsterdam
• Michael W. Lewis, Professor of Law, Ohio Northern University Claude Pettit College of Law
• Liesbeth Lijnzaad, Extraordinary Professor Maastricht University, Legal Advisor Dutch Ministry of Foreign Affairs
• Noam Lubell, Reader in the School of Law, University of Essex, Adjunct Lecturer Irish Centre for Human Rights, Author of Extraterritorial Use of Force against Non-State Actors
• Peter Margulies, Professor of Law, Roger Williams University School of Law
• Joanne Mariner, Human Rights Program Director, Hunter College CUNY
• Marko Milanovic, Lecturer University of Nottingham
• Andre Nollkaemper, Professor of Public International Law and Vice-Dean for Research at the Faculty of Law of the University of Amsterdam
• Jelena Pejic, Legal Advisor at the Legal Division of ICRC
• Tom Ruys, Lecturer at the Catholic University of Leuven; Author, 'Armed Attack' and Article 51 UN Charter
• Marco Sassòli, Professor, International Law at Geneva Academy for International Humanitarian Law
• William A. Schabas, Professor of International Law, Middlesex University (London), Leiden University, Irish Centre for Human Rights
• Hina Shamsi, Director ACLU National Security Project
• Nico Schrijver, Chair of Public International Law at Leiden University, and Academic Director at the Grotius Centre for International Legal Studies, Leiden University/Campus The Hague
• Wouter Werner, Professor of International Law, VU University Amsterdam