Armed Anti-terrorism Actions Of The US In The Perspective Of International Humanitarian Law

In recent years, momentous international terrorist incidents continue to occur and all countries are faced with the reality of the threat of terrorists'activities. The terrorist attack of"9.11"is a milestone in the development from the traditional terrorism to the modern terrorism. Facing the upgrade of international terrorism, the United States chooses the use of force to combat international terrorism. Therefore, theorists in the international law have begun to discuss with some legal matter about the use of military force to anti-terrorism. Many scholars from different angles research the validity of the American action of using force to anti-terrorism, such as international law, international human rights law, international humanitarian law, international criminal law, and so on. It can be described as "the benevolent see benevolence and the wise see wisdom." The action of using force to anti-terrorism does not only make a quite big challenge for the present anti-terrorist international law, but also has caused many theoretical disputes. Though the use of force to anti-terrorism has great disputes in theory, the United States by the name of"anti-terrorism"adopted the military actions in Afghanistan and Iraq, which had already made up of the legal meaning of"armed conflict". It is no doubt to apply international humanitarian law.The first part of the paper elaborates the reasons and practices of using force to against terrorism by the United States. Terrorism is not a new phenomenon in this century. It has been existed for a long time. There are many ways to fight against terrorism, and the reasons why the United States chose to use force to against terrorism are as follows: First, the terrorist activities aim at the United States have been getting more and more frequent. Second, the terrorist attack of"9.11"has aroused the United States'strong desire to retaliation. Third, the use of force to anti-terrorism is helpful for the United States to carry out hegemony policy. In this century, the practices of using force to anti-terrorism which initiated by the United States were mainly in 2001 to Afghanistan's military action and in 2003 to Iraq's military action. Although these two military actions are under the banner of "anti-terrorism", it is not in line with the real significance of "anti-terrorist operation". Its validity has also received international society's intense question.The second part discusses some theoretical disputes about using force to against terrorism. The use of force to anti-terrorism has had the following discussions in theory. First, Can the use of force to anti-terrorism cite the right of self-defence? Although exercising the right of self-defence is one of legitimate reasons of use force, however, whether it becomes the reason of use force to anti-terrorism needs to solve following questions: the first, whether the non-state actors'armed attack could cite the right of self-defense; the second, whether the armed attack includes the terrorist attack; the third, whether the terrorist attack can be regarded as the armed attack of the asylum or the support country to the victimized country. These questions still belong to the unresolved disputes. This article believes that it has been still improper that the use of force to anti-terrorism could on the legal basis of the right of self-defence at present. It is possible that"anti-terrorism"can be the special reason for using force, but also has many complex barriers. It still waits for scholar's further research. Second, make a choice on the legal application about the use of force to anti-terrorism. International terrorist attack is an international crime, so the correct countermeasure is to prosecute terrorists in the international criminal court. It is no doubt to apply the peacetime law, however, it seems that the boundary between the peacetime law and the armed conflict law was obliterated when the action of using force to against terrorism appeared. Then the following questions are produced. Firstly, we should consider if the action of using force between a state and an international terrorist organization belongs to the legal meaning of"armed conflict". Secondly, we should consider whether the use of force to against terrorism apply the armed conflict law. This article believes that there are many kinds of measures to against terrorism, not only the use of force. Anti-terrorist measures must abide by the international and domestic law. When it is a non-military force measure, it should not apply the international humanitarian law. There should be an exception that if the extent of using force to anti-terrorism has already achieved the degree of"armed conflict", the international humanitarian law should be no doubt to applied. Third, how to define the status of terrorist when captured. Could the terrorist be the prisoner of war? This article believes that the international terrorist attack is one kind of international crimes, therefore,the captured terrorist's legal identity is not the prisoner of war, but the suspect.The third part of the paper elaborates that the military actions under the name of"anti-terrorism"which launched by the United States, badly violated the international humanitarian law. Although the use of force to anti-terrorism still has many disputes in theory, and the military actions in Afghanistan and Iraq were not in line with the real significance of "anti-terrorist operation", it is certain that the military actions had already achieved the extent of"armed conflict", badly violated the international humanitarian law. This chapter elaborates three main illegal activities: the first one is that there are many facts of violating"the principle of distinction"; the second one is that the use of new weapons violated the means and method of warfare; the third one is that abusing the prisoner of war seriously infringed their legitimate rights. It is an invariable theorem to punish the misfeasor and compensate for the sufferer. But because the implemental mechanism of the international humanitarian law exists serious flaws, causes difficulty to carry on the fair trial and the punishment to the misfeasor. It is also difficult to ensure the victim obtain prompt and reasonable relief.The last part of the article discusses that from the analysis of disputes in theory and practices of using force to against terrorism, we could obtain several enlightenment. Firstly, it is necessary to make a unified understanding about terrorism. In the certain extent, the lack of a unified understanding has hindered the advancement of the international antiterrorist cooperation. Otherwise, it also resulted in unilateralism polices and measures on anti-terrorism. Secondly, it needs to make an unambiguous standard about the use of force to anti-terrorism. Thirdly, it is indispensable that we should establish the international anti-terrorist cooperation frame under the leadership of the UN as soon as possible. The practice proved that the strategy of unilateral military force on anti-terrorism could not against terrorism effectively. The sensible choice is that playing the UN's leading role, establishing anti-terrorist cooperation under the international law frame, solving basic questions which produce the international terrorism. Fourthly, we must improve the international humanitarian law. Though there are some disputes about whether the international humanitarian law could apply to the action of using force to anti-terrorism, the military actions in Afghanistan and Iraq, which under the name of"anti-terrorism", have already exposed many flaws. It is necessary to make a further improvement in the content, the mechanism of supervision and implementation of the international humanitarian law.