Rules of war enable terror

Alan M. Dershowitz
Originally published May 28, 2004
http://www.baltimoresun.com/news/opinion/oped/bal-op.geneva28may28,0,3485167.story?coll=bal-oped-headlines

THE GENEVA Conventions are so outdated and are written so broadly that they have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists.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.

Following World War II, in which millions of civilians were killed by armed forces, the international community strengthened the laws designed to distinguish between legitimate military targets and off-limit noncombatants. The line in those days was clear: The military wore uniforms, were part of a nation’s organized armed forces, and generally lived in military bases outside of population centers. Noncombatants, on the other hand, wore civilian clothing and lived mostly in areas distant from the battlefields.

The war by terrorists against democracies has changed all this. 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.

Whenever a civilian is accidentally killed or an ambulance is held up at a checkpoint, the terrorist leaders, and those who support them, have exploited the post-World War II laws of warfare to condemn the democracies for violating the letter of the law. Some human rights groups, international organizations and churches have joined this chorus of condemnation, equating the deliberate targeting of innocent civilians by terrorists with the unintended consequences of trying to combat terrorism – unintended by the democracies, but quite specifically intended, indeed provoked by, the terrorists. This only encourages more terrorism, since the terrorists receive a double benefit from their actions. First they benefit from killing “enemy” civilians. Second, they benefit from the condemnation heaped on their enemies. Human rights are thus being used to promote human wrongs.

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.

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.
International law must recognize that democracies have been forced by the tactics of terrorists to make difficult decisions regarding life and death. The old black-and-white distinctions must be replaced by new categories, rules and approaches that strike the proper balance between preserving human rights and preventing human wrongs. For the law to work, it must be realistic and it must adapt to changing needs.

Alan M. Dershowitz is a professor of law at Harvard University and the author of America on Trial (Warner Books, 2004).

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2 thoughts on “Rules of war enable terror”

  1. For Alan Dershowitz to take a position that supports prisoner interrogation in a non-constitutional way is amazing to me, especially when the ACLU is taking the exactly opposite tact. In case someone has missed their statements, they apparently believe that any one the United States takes into custody for any reason, anywhere in the world, even in battlefield situations has the protection of the United States Constitution, Miranda, court appointed attornies, the whold nine yards.

    I much as I despise the ACLU, we must be careful how far we are willing to go in defending ourselves. A wise man once said, “Pick your enemies carefully, for you will become like them.”

    The truth of that statement is born out by our actions in World War II when we interned many innocent Japanese, fire bombed civilian targets, and dropped two atomic bombs (all actions similar in content to what the fascist rulers in Germany, Italy and Japan did). Our country and our culture has taken on a much more socialist, authoritarian strain during our battle with Communism. Our fight with terrorism will have a similar effect as long as we leave it only in the military and political sphere.

    We must oppose evil from a Christian foundation without resorting to the jingoism, secularism, and hate of either the left or the right.

  2. John McCain fires back:

    Last month at a Senate hearing, Sen. James Inhofe (R-OK) declared that he was “more outraged by the outrage” than by the U.S. treatment of Iraqi prisoners at Abu Ghraib. He said, “I am also outraged that we have so many humanitarian do-gooders right now crawling all over these prisons looking for human rights violations…”

    On Tuesday, Senator John McCain (R-AZ) fired back. In the Wall Street Journal, the former POW wrote an eloquent op-ed “In Praise of Do-Gooders.”

    McCain writes: “It is critical to realize that the Red Cross and the Geneva Conventions do not endanger American soldiers, they protect them… These are standards that are never obsolete–they cut to the heart of how moral people must treat other human beings. They also are the principles on which the liberation of Iraq is based.”

    McCain believes that the “Red Cross and other ‘do-gooders’” help the U.S. achieve its stated goal of replacing “terror, humiliation and arbitrary rule with freedom, human rights and the rule of law.”

    He continues: “Rather than placing blame on the ICRC or other humanitarian groups, we must instead fix our gaze on those individuals who perpetrated abuses at Abu Ghraib. Had American officials paid heed earlier to ICRC reports of these abuses at Abu Ghraib, we could have limited the damage these individuals have done to America’s international standing.”

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