A year after the terrorist attacks of September 11, it is evident that the United States' response represents a direct challenge to the laws of armed conflict as they have been understood for fifty years. The Bush administration has jettisoned long-standing rules about the definition of war and the treatment of prisoners. At home and abroad, it asserts the right to act without any judicial oversight. It has proclaimed its willingness to launch pre-emptive attacks on other countries, and to send its troops on secret missions abroad that may be outside the law altogether. To the administration's supporters, these measures are essential, tough-minded responses to a new and radical danger. Whether you accept that claim or reject it, the US government's measures have clearly brought us to a defining moment for international humanitarian law – indeed, for the very idea of a world order under law.

There is an urgent need, then, for a comprehensive account of the developments of the past year. In this magazine issue, we aim to provide it – and to show just how much is at stake in the fractured relationship between law and armed conflict in today's world. We hope also to look forward, and offer some alternative visions of where we should go from here. In an age of terrorism, more than ever, the laws of war matter in every society; they are at the heart of vital political debates. As the United States debates an invasion of Iraq that most of its closest allies would consider illegal, this point scarcely needs underlining.

Between Crime and War

What changed on September 11? The terrorists who carried out the attack showed the world that destruction and death on a massive scale were no longer the preserve of nation states or liberation movements. A small group whose territorial base (if any) might be half a world away could commit an act of spectacular devastation. At the same time, the United States, which had come since the end of the Cold War to believe itself militarily unassailable, was suddenly shown to be vulnerable. It now faces the challenge of using its overwhelming power in the world to defend its own national security.

Within a day of the attacks, President Bush announced that he regarded them as "acts of war", and that the United States was involved in a "war against terrorism". This was not simply rhetoric. The model of armed conflict has shaped much (though not all) of the administration's response to September 11. To the President, the magnitude of the attacks and the continuing threat that al-Qaeda poses to the United States are on the scale of a war. Many people who are not, in general, supporters of the Bush administration have some sympathy with this position; "a comparable terrorist attack with a weapon of mass destruction could threaten the US government's ability to protect its people, and its economic, political and physical infrastructure," Anne-Marie Slaughter writes in her essay.

Still, the idea that a country can declare war on a nebulous entity like terrorism strains the framework of the laws of war beyond breaking point. In this magazine, Georges Abi-Saab argues that the Bush administration's policy is legally untenable and politically unwise. He proposes that the administration could have – and should have – responded to September 11 in a way that was consistent with international norms, by an effort of law-enforcement rather than war. Implicit in this argument is the idea that the terrorist attacks didn't represent anything that the international legal system couldn't handle: September 11 wasn't as unique or unpredictable as is often claimed, Abi-Saab argues.

In any case, the path the administration has taken is very different: a blurring of the notions of war and crime-fighting that seems to escape the legal constraints associated with either. Unlike wars as traditionally defined, the "war on terrorism" seems to have no clear end-point and no distinct battlefield. And the Bush administration has used the ambiguous nature of its campaign against terrorism to treat the people detained in the course of it in selective and apparently opportunistic ways.

Classifying the Captives

The man who seems to have had the closest connections to the September 11 hijackers, Zacarias Moussaoui, was already in custody when the attacks took place, and has been indicted in the US federal courts. So was John Walker Lindh, a US citizen who was captured while fighting with the Taliban in Afghanistan. With these exceptions, the administration has classed the men captured in Afghanistan as military prisoners. President Bush has authorized the use of specially convened military commissions to try them, with no appeal to the civilian courts (though no detainees have yet been charged, let alone tried).

However, the detainees are not being held as prisoners of war but rather as what the administration terms "unlawful combatants". According to the administration, those fighting for the Taliban, though covered by the Geneva Conventions, do not qualify for POW status because they do not meet the formal criteria the Conventions set out. Those detainees judged to be members of al-Qaeda do not fall under the Geneva Conventions at all, the government says, because they are fighting for a terrorist organization, not a state. The authorities have not organized hearings to determine the legal status of the detainees, as required by Article 5 of the Third Geneva Convention. Moreover, by holding the prisoners in Guantanamo Bay (outside United States territory) the government has kept them beyond the reach of the US Constitution. The al-Qaeda detainees are in a legal limbo, subject to detention without judicial review until the US government decides that its war on terrorism has ended.

Within the United States, two American citizens are also being held as enemy combatants: Yaser Esam Hamdi, who was picked up in Afghanistan, and Abdullah al-Muhajir (formerly named Jose Padilla), who was arrested in Chicago. The administration claimed to have knowledge that al-Muhajir was researching the possible explosion of a ‘dirty bomb' in the United States. The government is fighting attempts to compel it to give proof before an independent judge of either man's involvement with terrorism, or to allow them to consult with lawyers. Regarding Hamdi, a federal judge recently wrote that his case "appears to be the first in American jurisprudence where an American citizen has been held incommunicado and subjected to an indefinite detention in the continental United States without charges, without any findings by a military tribunal, and without access to a lawyer." The government is appealing the judge's order that it provide evidence to back up the allegations against Hamdi.

All this provides ample support for Aryeh Neier's suggestion that the cause of human rights is facing the most serious setbacks it has confronted for many years – indeed since the era of rights began in the 1950's. Neier reviews the measures that the Bush administration has taken – including the revival of political surveillance – and offers a detailed critique of the arguments that have been made to justify them. His pessimism is offset by the observation that human rights have often flourished in the face of adversity (indeed in the last few weeks some US judges have taken modest steps to challenge the executive branch's assertion of unchecked discretion). But Neier advises (in recognition of the national sense of vulnerability) that the best way for human rights advocates to make their case is by rejecting the notion of a trade-off between rights and security: they must show that in the long run, an America that stands for rights will have as good a foundation for its security, if not a better one.

The United States in the World

The ambiguous nature of the US fight against terrorism is also visible in the changes it may entail for military strategy. It has been reported that the Defense Department is considering ways of giving Special Operations forces a greater role in the anti-terror campaign. According to the New York Times, military units may be sent on missions in countries where the United States is not openly at war, perhaps without informing the local government of their presence. These operations, if they happen, would not form part of a recognized international or internal armed conflict: they would take place entirely outside the Geneva Conventions and the whole legal framework that has been constructed over the last fifty-five years to regulate the brutality of warfare.

This expansion of US engagement overseas comes at a time when the United States is fighting to prevent its forces falling within the jurisdiction of the new International Criminal Court. Even before September 11, the Bush administration regarded the court with hostility, arguing that it could lead to politically motivated cases against US soldiers and officials. Since the terrorist attacks, US opposition to the court has hardened and its efforts to curtail the court's authority have intensified. In the run-up to the institution's launch on July 1, the administration repudiated the US signature of the Rome Statute establishing the court, secured a one-year exemption from the court for soldiers from non-party states serving under the auspices of the United Nations, and launched a major diplomatic offensive to reach bilateral agreements with other countries to remove US forces serving on their territory from the court's reach. The State Department warned that countries that refused to sign such agreements might face a reduction or cut-off in US military aid.

In the last year, the projection of US power in the world has put it in radical opposition to the established norms of international society. This is the starting point for Anne-Marie Slaughter's essay: she sees a widening split between America's military power and the civilian power epitomised by the European Union. Since September 11 the split has widened, she argues, because the United States sees its military power as essential to its survival as a nation. Slaughter points out, though, that the real lesson of September 11 should be about the importance of civilian and military power working in harmony to fight off a genuine threat to their shared values. She proposes a vision of how the United States and the European Union can work together by forging a common approach to international law, based on the coordination and interaction of national systems. Slaughter adds that a global criminal justice system is now self-evidently the place to start.

Meanwhile, there are other ways in which the imperative of national security is leading the United States in a more unilateral direction. In a speech on June 1 to the graduating class at West Point, President Bush spelled out what he called "a new strategic doctrine" for the United States to fight the combined threats of apocalyptic terrorism and the proliferation of weapons of mass destruction. Bush argued that old notions of containment and deterrence had to be supplemented with a policy of pre-emptive action to prevent groups that reject the basic rules of the international system from acquiring weapons of great destructive power. Implicit in his argument was the notion that, without the backing of the Security Council, the United States claimed the right to intervene in other countries even before they appeared to pose an imminent threat to American territory or American citizens. Iraq, it is widely assumed, will give this doctrine of pre-emption its first field test.

When is it Acceptable to Start a War?

In his contribution, Robert Cooper gives a framework for this argument, by presenting a far-reaching analysis of the relationship of force and law in world politics. What makes it acceptable to go to war? According to Cooper, it is a characteristic of the modern age that we justify armed conflict in the name of law or humanity – we accept the use of force if it supports the values and order of an international system we approve of. But Cooper argues that it is ultimately pointless to ask if the use of force is itself legal; if the international system itself is threatened, then it is "merely pedantic" to ask if going to war in its defence is permitted by international law. Cooper suggests that the combination of terrorism and weapons of mass destruction now poses a radical threat to world order, and argues that we need new legal concepts to address it.

Thus far, then, Cooper appears in sympathy with the claims of the Bush administration – but his argument has a further implication. Force used outside the law must be in defence of a new vision of international order, he writes – and it is here that the critical question for the US government lies. As David Rieff explores in his essay, Bush's policies so far seem like a pure assertion of American imperialism – not the expression of a new vision of world affairs that other countries might accept as legitimate. The exercise of unilateral power may be inevitable when the United States (the only country that could even attempt such a policy) feels itself against the wall – but it can only be a short-term solution.

In the meantime, the US response to September 11 is already setting the framework in which other countries respond to the new security threats they face. It is striking that the three dominant international crises of the last year – the terrorist attack against the United States, the Middle East conflict, and India and Pakistan's confrontation in Kashmir – although widely different, have certain formal similarities: in each case, a country finds itself facing attacks from a non-state group, based in territory outside the country's borders. In this collection, Chibli Mallat examines the resonance of the Bush's administration's proclaimed "war against terrorism" in the context of the Middle East. Mallat argues that terrorism is such a politically loaded term that the fight against it cannot possibly provide the basis for regional, let alone global, stability. He puts forward an alternative picture that matches the suggestions of many of our other authors. The United States should use its response to September 11 to promote a system of international criminal justice. In the Middle East, he adds, it should support the tangible goal of democracy, in line with its own historic values.

Anniversaries are understandably a time for retrospection. But the essays in this collection illustrate the fact that the changes wrought by September 11, and the US response to it, are at an early stage. Whatever their disagreements, the contributors to this magazine all argue that the most important questions are still open, and the most important decisions still to be taken. It could be, as some warn, that we are witnessing the dismantling of the entire structure of international law that has been earnestly constructed over decades. Or it could be that this period will give rise to something more positive: the evolution of international law, not its destruction. For the moment, though, we hope that these essays will begin a discussion that will continue on the website, both through responses from our readers, and other contributions that we hope to publish in the months ahead.

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