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New Battlefields/Old LawsCritical Debates on Asymmetric Warfare$
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William Banks

Print publication date: 2011

Print ISBN-13: 9780231152358

Published to Columbia Scholarship Online: November 2015

DOI: 10.7312/columbia/9780231152358.001.0001

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Extraterritorial Law Enforcement or Transnational Counterterrorist Military Operations

Extraterritorial Law Enforcement or Transnational Counterterrorist Military Operations

The Stakes of Two Legal Models

(p.23) One Extraterritorial Law Enforcement or Transnational Counterterrorist Military Operations
New Battlefields/Old Laws

Geoffrey S. Corn

Columbia University Press

This chapter examines two legal models for combating transnational terrorism: extraterritorial law enforcement and transnational counterterrorist military operations. It challenges conventional opinion that military operations against transnational terrorists which do not fall neatly within the state-centric conflict categories derived from the Geneva Conventions should be treated as extraterritorial law enforcement activities. It argues that the humanitarian law framework must be extended to counterterrorist military operations by appealing to core historical principles of humanitarian law and to military protocol, namely, the mandate in the U.S. Department of Defense Law of War Program to “comply with the principles of the law of war during all military operations.” It contends that it is invalid and disingenuous to characterize counterterror military operations employing combat power under a “deadly force as a first resort” authority as extraterritorial law enforcement. The chapter also considers the underlying nature and purpose of the existing law-triggering paradigm, the different nature of the authority derived from the law of armed conflict compared to the law enforcement framework, and the importance of maintaining a clear distinction between jus ad bellum and jus in bello.

Keywords:   transnational terrorism, extraterritorial law enforcement, counterterrorism, military operations, humanitarian law, Department of Defense, Law of War Program, law of armed conflict, jus ad bellum, jus in bello

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