JURIST Guest Columnist Mary Ellen O’Connell
of Moritz College of Law, Ohio State University, says that when it comes to fighting terrorism, the experienced British, newly challenged in the recent London bombings, have the right idea...
he British have shown extraordinary resilience in the face of the London Transport bombings. They are determined not to let terrorists disrupt their way of life. They are “getting on with it.” No one is proclaiming that “Everything changed on 7/7.” And no one is declaring war.[1
The British know from their long, hard experience with IRA and related terrorists, that to declare war on terrorism is to hand terrorists a victory. To call opponents “combatants” and declare war against them elevates their status above the mere criminals they are. The IRA used hunger strikes to try to pressure the British into recognizing them as combatants. They wanted the psychological boost that would come with being at war with the United Kingdom. According to Professor Christopher Greenwood of the London School of Economics, however,
[i]n the language of international law there is no basis for speaking of a war on Al-Qaeda or any other terrorist group, for such a group cannot be a belligerent, it is merely a band of criminals, and to treat it as anything else risks distorting the law while giving that group a status which to some implies a degree of legitimacy.
Under international law, to become a belligerent or a combatant is to take direct part in armed conflict. Armed conflict exists when organized armed groups engage each other in significant armed hostilities.[3
] The intermittent nature of terrorist attacks means that they will not generally, by themselves, amount to armed conflict: “’International terrorism implies the intermittent use or threat of force against person(s) to obtain certain political objectives of international relevance from a third party.’ …[T]he intermittent factor, which is a hallmark of terrorism, excludes it from constituting war per se. But …, terrorist tactics may be adopted in war for the purpose of guerilla warfare.”[4
] The British have long held that “It is the understanding of the United Kingdom that the term 'armed conflict' of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation.”[5
The British position was also America’s position until September 11. American presidents for decades stood against equating terrorism with armed conflict.[6
] Yet on September 12, President Bush declared a global war on terrorism. It soon became clear why the Administration reversed course. It had nothing to do with any change in the nature of terrorism. It had to do with trying to find a way around the applicable law.
Apparently, the Administration was interested in a legal strategy that would allow it to avoid the burdens of American criminal law applicable in peacetime.[7
] In wartime, in contrast to peace, lawful combatants may kill other combatants on the battlefield without warning. Captured combatants may be held without trial until the end of hostilities. The law of war, however, has burdens, too. Detainees have extensive protections—including the right to be registered and visited by the International Committee of the Red Cross, the right to be free of coercive interrogation, and the right to be free of inhumane treatment of any kind.
Rather than acknowledge those protections and comply with them, Administration lawyers fabricated a new combatant category called “enemy” combatant. They assert that individuals in this category have no legal protections under the law of war and that the law of peace is not applicable in wartime. We now have extensive evidence that after the Administration created this imagined category, George Tenet, Donald Rumsfeld, and others began authorizing the torture, coercion, and abuse of detainees at Guantanamo Bay, in Afghanistan, in Iraq, and at other undisclosed locations. Dismissing wartime protections in the global war influenced the flouting of protections in the real wars of Afghanistan and Iraq.
Governments, international organizations, human rights organizations, scholars and judges have all challenged the claims to wartime rights in the absence of armed conflict. The President, his advisor Karl Rove, and others in the Administration have felt pressed recently to justify their policy.[8
] Administration lawyers are out arguing that the global war is a real war. They cite the series of intermittent attacks on the United States by al Qaeda between 1993 and 2001.[9
] These officials, however, confuse armed attack with armed conflict. Yes, the United States was attacked, but until it counter-attacked in Afghanistan, until it engaged in significant armed hostilities, there was no armed conflict; there was no war. The U.S. counter-attacked for September 11 on October 7 and then it was not against “terrorism,” but against Afghanistan. The armed conflict in Afghanistan triggered the law of war—the rights to kill and capture and the duty to protect those in custody. The war in Afghanistan created combatants in Afghanistan; Afghanistan was the war zone, not the world over.
The consequences of adopting policies that cannot be justified in law have been dire for the Untied States. The U.S. prisons at Guantanamo Bay (Cuba), Bagram Air Base (Afghanistan), and Abu Ghraib (Iraq) have become powerful symbols of American lawlessness. They are now used to recruit America’s enemies. Here, again, we could have learned from the British experience in Northern Ireland. If you deny basic human rights to your opponents, you not only commit a grave moral and legal offense, you create in your opponents a greater will to fight. The British abuses against prisoners at its infamous Maze Prison were the best recruiting tool the IRA had. When the abuses ended, following a decision of the European Court of Human Rights, recruitment tailed off too.[10
Despite the evidence of how the global war policy is failing, the President persists with it. Even while he was trying to contain the growing call to close Guantanamo Bay, President Bush sought to use the war on terror to bolster declining American support for the war in Iraq. In a speech to soldiers at Fort Bragg, North Carolina in June 2005, the President said the war in Iraq was part of the war on terror. He implied the fighting there was about fighting Osama bin Laden. To make his case, President Bush did the extraordinary thing of citing Osama bin Laden for authority. Not only did he point to bin Laden’s belief in a global war, the President actually used bin Laden’s term that the U.S. was now engaged in a “third world war.”[11
] The President took the position that a band of criminals was able to launch World War III.
By dramatic contrast, Prime Minister Blair would not give the terrorists the benefit of a platform on July 7. He stated briefly the facts of the attacks and went on about his business refusing to allow the bombers the satisfaction of knowing they had disrupted British life much at all—let alone engaged the British in an armed conflict, much less a “world war.”[12
The U.S. needs to start following this example. It is time to drop the war on terror rhetoric, and it is time to get the country into compliance with international and U.S. law. We need to be able to defend our positions based on generally accepted legal principles, not the esoteric views of lawyers who advised the Administration on the global war policy. The most important thing that needs to be done is the appointment of an independent special prosecutor to investigate Administration officials responsible for detainee policy.[13
] While there have been at least twelve major investigations into detainee abuse, no investigation has been conducted by an independent prosecutor with subpoena power into the actions of civilian officials. The special prosecutor needs to be someone who understands and respects international law.
The British take international law seriously—certainly on the question of terrorism. They know that international law tracks common sense, experience, and moral principle. We should follow their lead and make stark the difference between us and terrorist criminals.
1. This comment draws on two articles: Mary Ellen O’Connell, Affirming the Ban on Coercive Interrogation, 66 O St. L. J. (forthcoming Nov. 2005); Mary Ellen O’Connell, Enhancing the Status of Non-State Actors Through a Global War on Terrorism, 43 COL. J. TRANS. L. 435 (2005).
2. Christopher Greenwood, War, Terrorism and International Law, 56 CURR. LEG. PROBS. 505, 529 (2004).
3. See previous JURIST Forum: Mary Ellen O’Connell, What is War?, Mar. 17, 2004.
4.INGRID DETTER DELUPIS, LAW OF WAR 25 (2 ed., 2000).
5. Marco Sassoli, Use and Abuse of the Laws of War in the “War on Terrorism,” 22 LAW & INEQ. 195, (2004), citing Reservation by the United Kingdom to Art. 1, para. 4 & Art. 96, para. 3 of Protocol I, (last visited Apr. 10, 2004).
6. See the strong position adopted by President Ronald Reagan in President’s Message to the Senate Transmitting a Protocol to the 1949 Geneva Conventions, 1 Pub. Papers 1987-88 (Jan. 29, 1987), reprinted in 81 AM. J. INT’L L. 910 (1987).
7. See Ruth Wedgwood on the burdens of criminal law that the Administration sought to avoid by designating people combatants. Ruth Wedgwood, Combatants or Criminals? How Washington Should Handle Terrorists, Foreign Affairs, May/June 2004.
8. The Administration must be recognizing it is on weak ground here. Karl Rove, the President’s adviser, has sunk to ad hominem attacks to try to keep America supportive of the global war, despite its illogic and terrible consequences. Rove said in a speech June 24, 2005: “Conservatives saw the savagery of 9/11 and the attacks and prepared for war; liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments and offer therapy and understanding for our attackers.” Democrats demanded an apology but did not get one. Scott, Shepard, Rove Won’t Apologize for Remark, ATLANTA JOURNAL-CONSTITUTION, June 24, 2005; 2005 WLNR 9980039.
9. See Curtis A. Bradley and Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2068 (2005); National Security Adviser Stephan Hadley in remarks at The Ohio State University, explained that the U.S. was in a war on terrorism as of September 12, because the September 11 attacks were “an act of war” and al Qaeda had attacked several times previously. Stephan Hadley, Remarks at the Moritz College of Law of the Ohio State University (Sept. 24, 2004).
10. See Michael P. O’Connor & Celia M. Rumann, Into the Fire: How to Avoid Getting Burned by the Same Mistakes made Fighting Terrorism in Northern Ireland, 24 CARDOZO L. REV. 1657, 1701-02 (2003).
11. David E. Sanger, Bush Declares Sacrifice in Iraq To Be “Worth It”, N.Y. TIMES, June 29, 2005, at A1.
12. See John Tierney, When Fear Stalks, Tune Out, N.Y. TIMES, July 9, 2005, at A29.
13. John Yoo, for example, Deputy Assistant Attorney General in the Office of Legal Counsel, Department of Justice from 2001-2003, wrote in one of the infamous “Torture Memos” that the President of the United States is not bound by customary international law because it is not part of federal law. Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations, reprinted in THE TORTURE PAPERS, THE ROAD TO ABU GHRAIB 286 (Karen J. Greenberg and Joshua L. Dratel eds., 2005.) Mary Ellen O'Connell is William B. Saxbe Designated Professor of Law at the Ohio State University.