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Notes
1. This approach is particularly surprising if one considers the clear position on the risks of the use of an overly broad notion of ‘war’ highlighted by Philip Heymann in Terrorism, Freedom, and Security: Winning Without War (Cambridge: MIT Press, 2004), in which he argued that conceptualising the US response to terrorism as a ‘war’ would be counterproductive, at the very least from a US Constitutional perspective, since ‘modern wars have always been temporary states – not states of prolonged, even indefinite duration. Only that limited duration would permit a national domestic and foreign policy with a single overriding objective. Only a limited duration would permit the safe transfer of massive powers into the hands of the executive’ (Heymann 2004, p. 21).
2. See, for example, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136, paras. 104–106.
3. For instance, within a section titled ‘Justifying targeted killings – The exceptional peacetime operations paradigm’, the authors make reference to the judgment of the European Court in Isayeva, Yusupova and Basayeva v. Russia (App. nos 57947/00, 57948/00 and 57949/00), judgment of 24 February 2005, a case arising out of the Chechen conflict, as an indication of the fact that it was permissible for Russian forces to use lethal force against Chechen rebels, even where it was not clear that they posed any immediate threat. However, what they fail to discuss is that, at the time, a non-international armed conflict was taking place in Chechnya, such that the situation cannot reasonably be characterised as involving a ‘peacetime operation’.
4. See, for example, the unconditional criticism of various aspects of US counterterrorism policies expressed by the Human Rights Committee in 2006 (UN doc. CCPR/C/USA/CO/3/Rev.1 of 18 December 2006) and by the Committee Against Torture in its 2006 Conclusions and Recommendations (UN doc. CAT/C/USA/CO/2 of 25 July 2006). See also the numerous orders for provisional measures adopted by the Inter-American Commission on Human Rights, specifically with regard to the treatment by the United States of individuals apprehended in the context of the ‘war on terror’ (on which see B. Tittemore, 2006, Guantanamo Bay and the precautionary measures of the Inter-American Commission on Human Rights: A case for international oversight in the struggle against terrorism, Human Rights Law Review, 6: 378).