Counterterrorism and the Laws of War: A Critique of the U.S. Approach

Respected British terrorism expert Adam Roberts will examine the timely issue of how the laws of war-often referred to as international humanitarian law-apply in America’s current war against terrorism, especially in the use of military force in Afghanistan. Professor Roberts will focus on three key questions:

• Are the laws of war applicable to such operations?
• Should they be applied in conflicts which are different from what was envisioned in treaties?
• Do these treaties provide for detainees in such conflicts to be considered prisoners of war?

One difficulty in applying the laws of war to such conflicts is that governments usually consider terrorists- like rebels in civil wars-to be criminals. In bombing Afghanistan, Professor Roberts believes the United States has made an effort to observe the legal requirement to avoid targeting civilians. However, he says, difficult issues are raised by the use of cluster bombs and continuation of the bombing after the Taliban regime fell. On the prisoners issue, Professor Roberts believes that for some time, U.S. policy was poorly thought out and implemented. However, he believes the White House eventually clarified what he calls the perfectly justifiable classification of certain prisoners as “unlawful combatants.”

After Professor Roberts’s presentation, David Scheffer, senior fellow at the United States Institute of Peace, will offer a response. Scheffer, a former U.S. Ambassador for War Crimes Issues, is an expert on international standards for the rule of law.

James Steinberg, vice president and director of the Foreign Policy Studies program at Brookings and a former deputy national security adviser, will moderate the discussion.