New Report on European Counterterrorism Practice

Anthony Dworkin, a senior policy fellow at the European Council on Foreign Relations, has an interesting new report out about developing ways in which European governments are using force abroad to combat the threat of terrorism of various sorts. The study is full of useful data points so is worth reading in its entirety, but I write here briefly to emphasize a conclusion it does not reach. The way the study is pitched at the outset of Dworkin’s blog post about its issuance – emphasizing the convergence of U.S. and European counterterror legal theories – those reading quickly might imagine it to support the view that various European powers have at long last embraced the United States’ novel post-9/11 legal theory of a global, non-international armed conflict (NIAC) against Al Qaeda, the Taliban and associated forces. But the study itself makes clear that while France and Britain, for instance, have come to use force in Syria and Iraq for various reasons, it is not the case that their engagement in this conflict reflects an acceptance of the concept of a global NIAC. See, for example, this section:

“In one important respect, however, European governments involved in counter-terror wars have stopped short of the expansive legal position adopted by the United States. EU member states (including France, despite the rhetoric used by government officials) are united in rejecting the notion of a single transnational armed conflict with the ISIS or al-Qaeda network. In the words of one British official, they continue to treat these terrorist groups as presenting a series of ‘specific threats in specific locations….’ This approach reflects both a strategic view about the most effective approach to fighting terrorist organisations and a legal analysis that rejects the notion of a geographically unbounded armed conflict against a non-state group.”

Recent practice of a few European states to be sure bear on other important questions of, for example, the extent of the embrace of the U.S. “unwilling or unable” theory of overcoming sovereignty objections to the use of force; and, for example, how international human rights law is thought to inform state use of force in self-defense against terrorist groups. But those looking for evidence of European support for the existence of such a thing as a transnational NIAC won’t find it here.