Much water has swirled around the rocks of the “war on terrorism” in recent academic literature. Both political and strategic as well as legal analysts have delineated their views on how best the world community should tackle the phenomenon of terrorism. The clash of competing demands of civil liberties, international law and domestic security and whether or not violent responses to violence render both sides morally indistinguishable are only some of the difficult questions that the current debate is facing.
It is often said, that the first casualty in “war” is the truth, and the second is law. While, in the present conflict, it might be an exaggeration to declare that silent leges inter arma, the law has certainly been used as an instrument by many in the debate, and its clarity has become increasingly obfuscated in the process. The discussions about the anti-terrorism-laws in the British House of Commons in the first months of 2005 are, again, highlighting the fact that very different views can be held as to how the laws, the government and the society should retort to terrorist threats. Such discussions, quite clearly, do not only occur in the domestic sphere but also on the international echelon. The numerous recent Security Council Resolutions issued during the debate revolving around terrorism are a case in point.
In this short paper we wish to firstly outline a few issues of a more general nature, drawing attention to some terminological particularities of the “war on terrorism” as well as some engaging moral aspects of the debate. Secondly, and being the main part of this paper, we will attempt to depict and analyse some of the aspects of both the “jus ad bellum” and the “jus in bello” in order to shed some light on the sometimes unclear legal situation regarding anti-terror measures.
Methodologically, we will approach the core answer to the essay-question from two angles. One will consist of an investigation into selected prominent regulations and concepts of international law. The second will comprise the analysis of contemporary world experiences that might reflect a shift in the perception of international law on an international level. Certainly, we should keep in mind that we ought to avoid the temptation of muddying the water of clear analysis by deducing general insights from single cases. However, in order to fully appreciate the impact of international law, the application to specific practical cases is indispensable.
B. The analysis of the subject matter
Before engaging in the legal analysis of some selected aspects of both the jus ad bellum and the jus in bello, and in order to be able to appreciate what exactly will be the subject of our examination we will shortly shed some light on three points. Firstly, the controversial notion of “terrorism” will be commented upon. Secondly, we will provide a few deliberations on moral aspects of the debate revolving around the “war on terrorism. Thirdly, we will suggest a few thoughts on the concept of “war” in the specific context of terrorism.
Interestingly, until date, it remains highly questionable, what or who the terminology “terror” or “terrorism” exactly represents. Is it epitomized by the “sworn enemy” Osama Bin Laden and his notorious network Al-Quaeda, or the so-called “Axis of Evil” ? Or is it any group engaging in violent acts for their perceived political or other aims ? Quite generally, we could say that terrorism is condemned, but not yet thoroughly defined, since, so far, no definition has gained universal acceptance. Weinberger, for instance, remarks on the difficulty of defining terrorism that:
“due to this lack of agreement (…) the world community has demonstrated a remarkable readiness to condemn and punish as terrorist specified classes of politically related offences. The problem remains that the punishments seem somewhat arbitrary due to the vast discrepancies in the interpretation of terrorism, its sources, how terrorism differs from common law and local statutory crimes, and whether a terrorist is really a legitimate freedom fighter.”
For the purposes of this paper, we wish to stick to the relatively clear definition of the “High Level Panel on Reform of UN Policy and Institutions”, which identified in what some of its members regard as a significant achievement, terrorism as:
“any action that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population or to compel a government or an international organisation to do or abstain from doing any act”.
In the moral debate on the “war against terrorism” the most noteworthy string arguably circles around the question of whether terrorists should be granted the advantages of international law and how the measures taken against terrorists should be considered to be morally justified or proportionate.
Here, we are facing a parallel case to the national law systems in constitutional states. A terrorist amok runner is domestically treated like any other criminal. Only measures that are allowed according to the respective legal system are permissibly taken against him or her. He or she is brought before a judicial court and being tried according to the national criminal laws in place. Why should this modus operandi be different in the international system ? If we morally accept that domestic terrorists benefit from the rule of law, why should we not accept the same at the international level ?
In this vein, Ignatieff has offered thoughts on a system of consideration referring to the thought of the “lesser evil”. This “lesser evil ethic”, according to the author, holds that neither the moralists nor the consequentialists ought to be allowed an exclusive control of the government’s polity decision making process. As for measures taken against terrorist activities, there will be times when, in the fight against terrorism what works is not right and what is right will not work. As its name implies, the “lesser evil” approach agrees with the moralists that some actions are morally always incorrect, even if they are effective in the “war”. However, with the consequentialists, it maintains that there are circumstances in which consequences matter so much - say, for example, saving the lives of innocent people from an imminently threatening terrorist attack - that necessity may require that a liberal democracy’s principle of self-defence compels it to take a course of action that strays from its own foundational commitments. In such an emergency, the “body politic” may opt for a morally problematic measure—doing so as a last resort and keeping it under a close scrutiny.
However compelling and opportune the lesser evil principle might look at first sight, it offers, in our view, only very little guidance to ethical discernment with some of the most vexing issues, such as, for instance the indefinite detention of unlawful combatants, torture, and targeted killing. Ignatieff puts forth only a very modest counselling as to how his theory should bring about morally appropriate measures when applied to real life situations. He does not offer anything beyond proposing four general tests for policy makers to examine in the adversarial process:
“Do the coercive measures violate individual dignity? Do they unnecessarily depart from existing due process standards? Will they make citizens more secure in the long run? Have less coercive measures been tried?”
Some people might want to argue that unlawful violent responses to terrorist violence (which are indeed allowed according to Ignatieff in case that they meet the criteria of his “tests”) render both sides morally like two peas in a pod. This might be true in a number of cases where counter-terrorism acts go far beyond what is legally acceptable. More strongly, however, it is the lack of dependable guidance and control that finally advocates, in our view, for the strict observance of the rule of law. It is indeed a (very practical) dilemma that some workable measures that might be necessary for an effective struggle against terrorist activities might have to be abandoned. Yet, the clash of the ever-competing demands of civil liberties and international law on the one hand and domestic or international security on the other must not get out of (legal) control. Rather, in case that the law does not offer workable measures, it is in our view a question of how a government can bring a change to the laws to respond to the existing threats. Thus, it will be insured that both legal changes and measures taken on the ground are kept under the scrutiny of the standard of modern constitutions, the “check of balances”, as well as the public judgment of the media and people. In any case, the fact that the law can by necessity only respond and be adapted to new threats and normally not be changed in advance should not give us reason to abandon the respect for the rule of law altogether.
Another nuisance that anyone has to face reading on the “war on terrorism” is the very notion of “war” in this particular milieu. It is necessary for our survey, to utter a few remarks on this terminus of “war” in the context of terrorism if we wish to appropriately apply the particular, relevant realm of international law which is concerned with the use of force and the conduct of warfare.
Is this term “war on terrorism” a mere buzz-phrase conveniently used in the public diplomacy of governments that are or perceive themselves to be on the forefront of the struggle or are we really witnessing a “war” that is being fought against the occurring terror ?
Certainly, the “war on terrorism” is not a war in the strict traditional sense of the word. The terrorist attacks on the World Trade Centre in 2001 have highlighted that, if we really wish to call this conflict against terrorist activities a “war”, we have to bear in mind that it is an entirely different kind of war from conventional warfare between a set of opposed units. The “traditional” confrontations in the Clausewitzian thinking are usually expected to originate in organised entities whose assets (territorial and otherwise) offer a basis for effective deterrence, pre-emptive attacks or even destructive retaliation. But the “war” embarked upon by terrorists is very often being launched by the “have-nots” deriving of poor regions against the “have-it-alls” of Western democracies – and is therefore to some degree a conflict “between the world where the developed state exists and the world where it does [practically] not”. Furthermore, unlike in conventional warfare, with a minimum application of force, a maximum of destruction can be achieved through terrorist actions, even if the latter might at times be of a more psychological than physical nature like, for instance, the loss of trust in the public security.
At the most abstract level, however, terrorism meets the same basic criteria as war. It represents, as Pham rightly points out, “consciously selected force applied for a specific end.” Moreover, it “employs kinetic, physical force to influence the enemy psychologically through the erosion of his will to continue to resist.” This modern terrorist tactic is a similar method in classical warfare. As is war, this (physical force) is easily measured by the degree to which the cohesion of the targeted entity is affected. Modern terrorists cells, like Al-Quaida and other groups, have proven they will go very far for their envisaged psychological and physical destruction and thus, terrorism represents a clash of wills between two or more contending parties. This is a similar type of clash of will as in classical warfare. If both parties employ force to resolve this clash of wills, and if both parties seek a political end through this conflict, then a state of war exists.
Thus, the application of the jus ad bellum and the jus in bello, despite some limitations that we shall see later, is generally permissible.
It will therefore be our next step to have a closer look at a selected number of legal rules and to understand how these can be applied to the “war on terrorism”. First will be the review of the jus ad bellum as the part of law which has been used to justify the resort to military action in the international arena. Here, we will focus on Art. 51 of the UN-Charter, which has been subject to a lot of controversy in relation to the terrorist-debate. Secondly, we suggest an analysis of the jus in bello, as being the corpus legis attempting to subjugate the conduct of war to certain rules of behaviour. In that section, prominence will be given to the legal qualification of prisoners of war (POW).
 Compare the suggestions of Pham, P.J.: “Law, Human Rights, Realism and the “War on Terror”, Human Rights and Human Welfare, Volume 4, 2004, p. 95.
 See the official UN-website on terrorism: http://www.un.org/terrorism/declarations.htm.
 Compare the warning remarks of George in his methodological instructions in: George, A.L., 1979: “Case Studies and Theory Development: The Method of Structured, Focused Comparison”, in Lauren, P.G., (ed.): Diplomacy: New Approaches in History, Theory and Policy, (New York: The Free Press,), p.43.
 For Terrorist Group Profiles as well as “Counter-Terrorism-Profiles” (special police forces etc.), see: http://www.terrorism.com./modules.php?op=modload&name=TGroups&file=index.
 For interesting suggestions on the uneasy definition of terror see Weinberger, J.: “Defining Terror”, Seton Hall Journal of Diplomacy and International Relations, Winter/Spring 2003, p.68. For a very thorough theoretical discussion of the terminus of terrorism, see: Gupta, R.: “Changing Conceptions of Terrorism “, Strategic Analysis: A Monthly Journal of the IDSA, December 2001, Volume XXV, No.9).
 Weinberger p.68.
 http://news.bbc.co.uk/2/hi/americas/4365661.stm (accessed on 21st March, 2005). A different wording has been set out be the United Kingdom Terrorism Act of 2000, which describes terrorism as “The use or threat of use of action designed to influence the government or to intimidate the public or a section of the public for the purpose of advancing a political, religious or ideological cause.” For Selected UN Activities to Address Terrorism since September 2001, see: http://www.un.org/News/dh/infocus/overview.htm. For special activities of the UN Office on Drugs and Crime in Vienna, see: http://www.unodc.org/unodc/en/terrorism.html.
 Pham p. 93.
 Ibid p. 93.
 Probably, the suggestions uttered by Ignatieff describe quite realistically some of the courses of action of governments involved in the fight against terrorists. Again, compare the interesting remarks by: Pham p. 93.
 Ibid p.94.
 For a thorough review of moral principles in application to the war on terror and especially the military actions of the US-led coalition in Iraq in 2003, see Rosenthal, who suggests that the existing moral rules are sufficient but that they need to be applied to entirely different circumstances. See: Rosenthal, J.: “New Rules for War”, Naval War College Review, Summer/Autumn 2004, Volume. LVII, No. ¾, 2004, p.91-101.
 The notion of the “war on terrorism” was introduced by US-President Bush, see, e.g., Address to a Joint Session of Congress and the American People (20 Sept. 2001) and Presidential Address (7 Oct. 2001), available at http://www.whitehouse.gov/news/briefings/.
 Serfaty, S.: “The Wars of 9/11”, The International Spectator, Volume XXXVI, No. 4, October - December 2001, p.6.
 Pham p. 92.
 Ibid, p.92-93.
 Besides, it is questionable whether terrorism as a “war” can be clearly separated from a (serious) “crime”. Terrorism is not defined as a specific crime per se. There is nothing like a violation of a common (international) crime of terrorism. Weinberger therefore rightfully asks: “What distinguishes the common crimes of murder, larceny, kidnapping, assault and others from the identical crimes enacted and labelled terrorism”? See: Weinberger p.76.
 Already for reasons of space, this analysis will by necessity be selective.
 Besides the traditional rules of the jus ad bellum and jus in bello, there exists a whole variety of legal documents relating to the context of terrorism. Since 1963, 12 universal legal instruments aiming at the prevention and suppression of international terrorism have been elaborated. See the “Counter-Terrorism Executive Directorate - International Action Against Terrorism: “Summary of legal instruments”: http://www.un.org/News/dh/infocus/terrorism/CTED_legal_instruments.pdf.
- Quote paper
- Master of Arts in Diplomacy, Law and Global Change Gabriel Vockel (Author), 2005, Can the principles of jus ad bellum and jus in bello be applied to the recently declared 'war on terrorism' ? , Munich, GRIN Verlag, https://www.grin.com/document/66214