Assessing Damage, Urging Action Chapter Three: The legality and consequences of a “war on terror” 1. Introduction The previous chapter discussed the many parallels between current and past counter-terrorist efforts. The contemporary era of counter-terrorism does, however, differ from all past experiences in at least one way: that is, the legal characterisation of this phase as a “war on terror”. If this characterisation were merely rhetorical – akin to the “war on drugs”, “war on crime”, “war on poverty” – there would be little point in the Panel devoting much attention to it. This is not however the case. The outgoing US administration uses the war analogy in its formal legal sense, and having proclaimed a “war” on terror, argues that international humanitarian law (the laws of war) be applied. The Panel takes the view that the “war paradigm” is misconceived, and has been applied in ways that have violated core principles of international humanitarian and human rights law. It is hoped that the incoming US administration will immediately, and publicly, renounce this characterisation. Whilst the outgoing US administration was understandably aggrieved at the horrendous attack of 9/11, it is possible to see, especially with hindsight, that many of its responses to the terrible tragedy were ill-advised. Accordingly, the Panel decided that it was important to set out its view as to why the conflation of acts of terrorism with acts of war was legally and conceptually flawed. The war paradigm has done immense damage in the last seven years to a previously shared international consensus on the legal framework underlying both human rights and humanitarian law. This consensus needs to be re-created and reasserted. Moreover, the use of the war paradigm has given a spurious justification to a range of serious human rights and humanitarian law violations, and remedies and reparation should follow. The following chapter will in turn examine: when and why the term “war on terror” came into common usage; the conflation of two legal regimes; why the war paradigm lacks a credible legal basis; and the adverse human rights consequences that have arisen in applying the war paradigm – both for the law and the persons affected. 2. When and why a “war” on terror was proclaimed Immediately following the attacks on the United States in September 2001, the US administration announced that it was at war. President George Bush declared: “On September the 11th, enemies of freedom committed an act of war against our country […]. Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and 49