Warfare has transformed in the modern age from traditional warfare to more states engaging in non-international armed conflict, like the so called “war on terror.” However, the United States adheres to a standard regarding the end of non-international armed conflicts that deviates from the various approaches of international law practitioners and scholars.
In this article, Christian Schaller both questions the U.S. policy and argues it lacks clarity and transparency while also acknowledging the power it gives decision makers in combating terror, a strategy that more states have come to appreciate.
The rise of ISIS was characterized by unprecedented numbers of Western citizens traveling across the globe to fight for the “caliphate.” Their capture created a humanitarian crisis in the region: what to do with those citizens who were captured by the Iraqi and Syrian governments? European governments, the UK and France in particular, have been less than enthusiastic about repatriating their citizens to face trial at home.
Nicole Molinaro examines the situation of British and French nationals who are currently facing trial or have already been convicted as ISIS foreign fighters in Iraqi courts. She discusses domestic legal and policy regimes established by the UK and France to deal with nationals accused of engaging in terrorism, the ECHR’s substantive protections and whether they are violated, the extraterritorial scope of the ECHR, and proposes an additional basis for European countries expanding extraterritorial jurisdiction: Citizenship.
Molinaro ultimately concludes that the ECHR has jurisdiction over the individuals and that the UK and France violate articles 2 and 3 by refusing to take custody of their citizen foreign fighters.
Legal analysis of the now much maligned “war on terror” has been a growth industry since the events of September 11, 2001. Despite this, how best to respond to and regulate terrorism remains a contested debate intellectually and practically. This article dives into that empirical gap by providing unique data on the operation of detention, arrest, and trial regimes created to counter and manage terrorism in the United Kingdom.