Many of us have been wondering when Alan Dershowitz would weigh in on the Abu Ghraib scandal, given his surprising advocacy of the limited use of torture in the war on terrorism a couple years ago. (See, for example, this LA Times op-ed written shortly after 9/11, Chronicle of Higher Education interview, and his book Why Terrorism Works: Understanding the Threat, Responding to the Challenge.) He has finally entered the public discussion with an op-ed in today’s Baltimore Sun entitled “Rules of war enable terror.”
THE GENEVA Conventions are so outdated and are written so broadly that they have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists. These international laws have become part of the problem, rather than part of the solution.
***
Terrorists who do not care about the laws of warfare target innocent noncombatants. Indeed, their goal is to maximize the number of deaths and injuries among the most vulnerable civilians, such as children, women and the elderly. They employ suicide bombers who cannot be deterred by the threat of death or imprisonment because they are brainwashed to believe that their reward awaits them in another world. They have no “return address.”
The terrorist leaders – who do not wear military uniforms – deliberately hide among noncombatants. They have also used ambulances, women pretending to be sick or pregnant, and even children as carriers of lethal explosives.
By employing these tactics, terrorists put the democracies to difficult choices: Either allow those who plan and coordinate terrorist attacks to escape justice and continue their victimization of civilians, or attack them in their enclaves, thereby risking death or injury to the civilians they are using as human shields.
This is certainly true, although hardly new. I agree, though, that this puts terrorists in a different category than uniformed soldiers fighting a war.
The time has come to revisit the laws of war and to make them relevant to new realities. If their ultimate purpose was to serve as a shield to protect innocent civilians, they are failing miserably, since they are being used as a sword by terrorists who target such innocent civilians. Several changes should be considered:
First, democracies must be legally empowered to attack terrorists who hide among civilians, so long as proportional force is employed. Civilians who are killed while being used as human shields by terrorists must be deemed the victims of the terrorists who have chosen to hide among them, rather than those of the democracies who may have fired the fatal shot. Second, a new category of prisoner should be recognized for captured terrorists and those who support them. They are not “prisoners of war,” neither are they “ordinary criminals.” They are suspected terrorists who operate outside the laws of war, and a new status should be designated for them – a status that affords them certain humanitarian rights, but does not treat them as traditional combatants. Third, the law must come to realize that the traditional sharp line between combatants and civilians has been replaced by a continuum of civilian-ness. At the innocent end are those who do not support terrorism in any way. In the middle are those who applaud the terrorism, encourage it, but do not actively facilitate it. At the guilty end are those who help finance it, who make martyrs of the suicide bombers, who help the terrorists hide among them, and who fail to report imminent attacks of which they are aware. The law should recognize this continuum in dealing with those who are complicit, to some degree, in terrorism.
I essentially agree with Dershowitz on these points, although I would note that legal accountability and popular sentiment don’t always go hand-in-hand. While I agree with the Kantian notion that the consequences of evil are the blame of the party that establishes the condition, the propaganda value of acting as if everyone believed this could be potentially devastating. And, of course, care has to be taken to avoid collateral damage regardless of the legal culpability.
Fourth, the treaties against all forms of torture must begin to recognize differences in degree among varying forms of rough interrogation, ranging from trickery and humiliation, on the one hand, to lethal torture on the other. They must also recognize that any country faced with a ticking-time-bomb terrorist would resort to some forms of interrogation that are today prohibited by the treaty.
This is also probably true and accords with de facto practice if not the de jure regulations. But, as Dershowitz himself has acknowledged, the “ticking time bomb” exception is likely to be incredibly rare. One wonders therefore what the value is of making a big production of codifying the fact that extreme circumstances might call for extreme measures. Creating this as an exception on the books would seem to invite abuses. Of course, going back to Dershowitz’ premise, it’s unlikely many of our future enemies will care for the nicities of Geneva or any other international rules.
