tag:blogger.com,1999:blog-7506249.post1611992881116850009..comments2023-11-05T04:43:31.501-05:00Comments on Kenneth Anderson's Law of War and Just War Theory Blog: Wesley Clark and Kal Raustiala in the NYT on terrorists as criminals, not combatantsUnknownnoreply@blogger.comBlogger1125tag:blogger.com,1999:blog-7506249.post-2809638605342958452007-08-13T10:10:00.000-05:002007-08-13T10:10:00.000-05:00As I sent in response to Dave Glazier's post on 10...As I sent in response to Dave Glazier's post on 10 August on this issue over at National Security Advisors:<BR/><BR/>Dave has gotten at what, for me, has always been the central problem or paradox with the "war paradigm" for counter-terrorism operations, and that is this: <BR/><BR/>The term "unlawful combatant," for me, is an oxymoron. To be a combatant is by definition lawful -- even honorable. It is a status, not an act.<BR/><BR/>Combatants have the privilege to kill, and commensurately, have lost their "right to life." <BR/><BR/>Combatants in armed conflict may intentionally kill and be killed by other combatants.<BR/><BR/>Combatants sometimes behave unlawfully, in which case they may be tried for their crime, for example murder, for intentionally killing a noncombatant, or other war crimes, such as intentionally attacking protected sites.<BR/><BR/>But combatant is a status, which is by definition lawful. It is actions, not status that defines "lawful," or unlawful."<BR/><BR/>The paradox with the terrorist as "unlawful combatant" model is that it deprives the terrorist of his right to life, while denying him the combatant's privilege to kill. <BR/><BR/>Thus, like a combatant, the so called "unlawful combatant" terrorist may be targeted and killed on sight regardless of whether caught in the act. Like an enemy soldier, he may be lawfully killed in his sleep, or while driving in a car to a meeting. <BR/><BR/>But should this "unlawful combatant" kill a lawful combatant at any time, even while that combatant is attacking his camp, we call it murder. He is not granted the combatant's privilege.<BR/><BR/>My problem with this result is that it merges the concepts of jus in bello with jus ad bellum. <BR/><BR/>In that model, we do not hold combatants accountable at law for the decision of their state to go to war. We hold a combatant accountable only for his conduct in the war. Even if the declared war is an unlawful one, the combatant is not a criminal for killing other combatants in the prosecution of that unlawful war. His behavior is honorable, even if his state is not. He is a warrior, like the warrior on the opposing side. This has the benefit of maintaining a certain limit on what conduct is permissible in war -- even ones unlawfully or wrongfully begun (which are all of them, depending on which side you are on), by governing the conduct of those doing the fighting.<BR/><BR/>The term "unlawful combatant," on the other hand, makes such a person accountable, not just for his conduct in war (jus in bello) but for the decision of his "state" to go to war. He becomes dishonorable and criminal not just for his behavior in the execution of the war, but for his very participation in it.<BR/><BR/>This is anti-thetical to the jus in bello/jus ad bellum construct and to the modern law of war as we have known it. Remove the constraint imposed by jus in bello, and behavior in war can escalate beyond "honorable" bounds very rapidly. It takes us into the dangerous realm of "the end justifies the means." <BR/><BR/>This because it allows each side to say of the other -- they started this war unlawfully, so they do not deserve the benefit of the laws of war -- we can do to them what they may not do to us . . . . This escalates rapidly as each side justifes doing worse to the other . . .<BR/><BR/>This is exactly the evil that the boundary between jus in bello and jus ad bellum seeks to inhibit. <BR/><BR/>Why does this happen to us now?<BR/><BR/>Because terrorists - the kind we fight these days --do not act for a state. <BR/><BR/>They act for a non-state organization that has declared war upon us. And because we do not consider this particular non-state organization to be a polity like a state --consisting of its citizens yet existing in law also independently of them (similar to the way a corporation is a person in the law, separate from its individual shareholders who are not (usually)individually liable for corporate crime), we hold each individual fighter accountable not just for his conduct in the fighting, but for the decision of the entity itself to go to war against us.<BR/><BR/>Thus, in this model, a terrorist can never be a combatant -- he can never have the combatant's privilege, because he is individually liable, unlike the true combabtant, for the decision of his entity to go to war. He can never fight with honor, as do true combatants, because he can never be separated from the unawful decision to even make war in the first place. <BR/><BR/>So "unlawful combatant" is an oxymoron. It implies a jus in bello status and accountablility for a jus ad bellum action.<BR/><BR/>And by creating this oxymoronic category of "unlawful combatant" we claim the privilege to kill him -- deny him a right to life -- while denying him a reciprocal combatant's privilege as against our own state combatants.<BR/><BR/>This is expedient, but is it honorable? And what does it say for maintaining limits on the conduct of war so that it doesn't escalate beyond all human control, to something that we never desired or anticipated (as Thucydides describes of the Peloponnesian wars, or as Lincoln comments on the American Civil War: <BR/><BR/>"Neither party expected for the war, the magnitude or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself would cease. Each looked for an easier triumph, and a result less fundamental and astounding . . .The prayers of both could not be answered: that of neither has been answered fully. The Almighty has His own purposes"<BR/><BR/>Or as Clausewitz put it: " . . .war, untrammeled by any conventional restraints, has broken loose in all its elemental fury.")<BR/><BR/>My own suggestion is that we ought to look at the counter piracy efforts of the 17th and early 18th century as a model for how to bring the force of war and a global effort against a dishonorable, non-state enemy. This is a model based in law enforcement, producing trial and punishment, using warships and honorable combatants to enforce the law . . . yet never for a moment conflating the enemy with a state . . .Anonymousnoreply@blogger.com