The continuing air strikes against terrorist bases and support systems in Afghanistan have made President Bush’s use of the word “war” to describe America’s response to the terrorist attacks of September 11th look accurate. But is “war” really the right word for this? Those who object to its use say that war cannot be waged against a dispersed enemy that has no flag, no territory, and no status in international law. They prefer to describe any military action in these circumstances as “a police action” aimed at arresting suspects and bringing them to justice. If the anti-terrorist campaign is indeed war, they say, it can only be a symbolic campaign like the war on drugs.
These skeptics may have a certain formal logic on their side, but it is also clear that international law is changing in the direction of recognizing all collective entities that commit aggression across recognized borders as agents under international law. Courts have found, for example, that Radovan Karadic, leader of the Bosnian Serbs, functioned as the head of an entity equivalent to a state for purposes of applying the norms of international law. His attempt to liquidate the local Muslim population could be properly described as genocide.
Osama Bin Laden and other leaders of terrorist networks are not that much different. They control a definite population, enter into agreements with the states that host them, and formulate aggressive foreign policies exactly as states do. Unlike the guerillas in a country like Colombia, they operate across national borders. They function like states and should be treated like states as subjects of international law.
Whether America is at war against the Al Qaeda network and related terrorist cells bears significantly on the nature of the wrong committed on September 11. The Bush administration cannot decide whether this is an act of war or a crime against American law. US Attorney General John Ashcroft thinks it is important that bin Laden has been indicted under our law for prior deeds of terrorism. But if this is war, the relevant body of law is not American but international law, and the relevant charges are not arson and murder, but genocide, war crimes, and crimes against humanity.
The Court that should hear the case is neither an American nor an Islamic Court, but the proposed International Criminal Court. Unfortunately, that court is not yet in being and when it does begin to operate (ironically, over American objections) its jurisdiction will not apply retroactively. Yet there are nations in the world – including Belgium, Germany, and Canada! – that could intervene and apply the principles of international law to the crimes of September 11.
As evidenced by these assertions of universal jurisdiction, the entire structure of international criminal law had begun to change even before the events of September 11. As the system of international order evolves, particular states will become less important. Organizations, with armies, with state-like functions, will become the agents and the targets of war. This means that if organized networks like Hezbollah or Al Qaeda attack other countries, they can expect a military response that will take the form of legitimate self-defense under the United Nations Charter. That America is at war only carries significance for the domestic law of treason: those who adhere to the enemy and give them aid and comfort are guilty of one of the most serious of domestic US offenses.
The coming evolution of international law faces difficult challenges in the area of protecting private citizens. We are told that we cannot expect the current terrorists to pay attention to the Geneva Conventions. They will torture and kill prisoners. They will have no more regard for the lives of civilians in the future than they did on September 11. This poses an ethical problem for the United States.
The question is whether the US and its allies can remain faithful to the traditional principles of the Geneva Convention exempting civilians from the scourge of warfare. Two factors must give us pause. If the enemy does not heed the rules, America will be tempted to adopt the same level of brutality. But it should not. It would be better to remain faithful to principles of decency in warfare even if or when the US becomes engaged in fighting a lawless and barbaric enemy.
A second factor is more subtle. Terrorists refuse to wear identifying clothing and insignia. When American and NATO troops encounter them abroad, they will trouble distinguishing them from the surrounding civilian population. This means that a Western soldier – easily identified as a combatant – cannot readily identify the people at whom he should shoot. He will invariably kill some civilians in the good faith belief that they are armed and hostile forces.
Civilians are caught in a no-man's land between official but innocuous power and an unofficial but deadly menace. With the breakdown of clear distinctions, the center – the safe haven for civilians – will not hold.
As international law adapts, we shall begin to less in categorical concepts like state vs. non_state, combatant vs civilian, and we shall begin to rely on relationship of degree and intensity. The primary concept will become complicity – sharing in the guilt of the terrorists. President Bush signaled the new way of thinking by declaring that all states harboring terrorists will be treated as complicitous and responsible for terrorist actions. States will no longer be able to deny responsibility on the ground that they did not know what was going on their territory. Citizens will not be able to deny responsibility on the ground that they are simply “bystanders.” Guilt will become a matter of measured portion, and some of the nuances will undoubtedly be lost in the heat of battle.
All of this is regrettable. Everyone should mourn the old distinctions of the law as they crack under the pressure of new realities. This is but one of many reasons for sorrow in the current state of tension.
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These skeptics may have a certain formal logic on their side, but it is also clear that international law is changing in the direction of recognizing all collective entities that commit aggression across recognized borders as agents under international law. Courts have found, for example, that Radovan Karadic, leader of the Bosnian Serbs, functioned as the head of an entity equivalent to a state for purposes of applying the norms of international law. His attempt to liquidate the local Muslim population could be properly described as genocide.
Osama Bin Laden and other leaders of terrorist networks are not that much different. They control a definite population, enter into agreements with the states that host them, and formulate aggressive foreign policies exactly as states do. Unlike the guerillas in a country like Colombia, they operate across national borders. They function like states and should be treated like states as subjects of international law.
Whether America is at war against the Al Qaeda network and related terrorist cells bears significantly on the nature of the wrong committed on September 11. The Bush administration cannot decide whether this is an act of war or a crime against American law. US Attorney General John Ashcroft thinks it is important that bin Laden has been indicted under our law for prior deeds of terrorism. But if this is war, the relevant body of law is not American but international law, and the relevant charges are not arson and murder, but genocide, war crimes, and crimes against humanity.
The Court that should hear the case is neither an American nor an Islamic Court, but the proposed International Criminal Court. Unfortunately, that court is not yet in being and when it does begin to operate (ironically, over American objections) its jurisdiction will not apply retroactively. Yet there are nations in the world – including Belgium, Germany, and Canada! – that could intervene and apply the principles of international law to the crimes of September 11.
As evidenced by these assertions of universal jurisdiction, the entire structure of international criminal law had begun to change even before the events of September 11. As the system of international order evolves, particular states will become less important. Organizations, with armies, with state-like functions, will become the agents and the targets of war. This means that if organized networks like Hezbollah or Al Qaeda attack other countries, they can expect a military response that will take the form of legitimate self-defense under the United Nations Charter. That America is at war only carries significance for the domestic law of treason: those who adhere to the enemy and give them aid and comfort are guilty of one of the most serious of domestic US offenses.
The coming evolution of international law faces difficult challenges in the area of protecting private citizens. We are told that we cannot expect the current terrorists to pay attention to the Geneva Conventions. They will torture and kill prisoners. They will have no more regard for the lives of civilians in the future than they did on September 11. This poses an ethical problem for the United States.
The question is whether the US and its allies can remain faithful to the traditional principles of the Geneva Convention exempting civilians from the scourge of warfare. Two factors must give us pause. If the enemy does not heed the rules, America will be tempted to adopt the same level of brutality. But it should not. It would be better to remain faithful to principles of decency in warfare even if or when the US becomes engaged in fighting a lawless and barbaric enemy.
A second factor is more subtle. Terrorists refuse to wear identifying clothing and insignia. When American and NATO troops encounter them abroad, they will trouble distinguishing them from the surrounding civilian population. This means that a Western soldier – easily identified as a combatant – cannot readily identify the people at whom he should shoot. He will invariably kill some civilians in the good faith belief that they are armed and hostile forces.
Civilians are caught in a no-man's land between official but innocuous power and an unofficial but deadly menace. With the breakdown of clear distinctions, the center – the safe haven for civilians – will not hold.
As international law adapts, we shall begin to less in categorical concepts like state vs. non_state, combatant vs civilian, and we shall begin to rely on relationship of degree and intensity. The primary concept will become complicity – sharing in the guilt of the terrorists. President Bush signaled the new way of thinking by declaring that all states harboring terrorists will be treated as complicitous and responsible for terrorist actions. States will no longer be able to deny responsibility on the ground that they did not know what was going on their territory. Citizens will not be able to deny responsibility on the ground that they are simply “bystanders.” Guilt will become a matter of measured portion, and some of the nuances will undoubtedly be lost in the heat of battle.
All of this is regrettable. Everyone should mourn the old distinctions of the law as they crack under the pressure of new realities. This is but one of many reasons for sorrow in the current state of tension.