The Law of War in the War on Terror
Kenneth Roth
From Foreign Affairs, January/February 2004
Summary: The Bush administration has literalized its "war" on terrorism, dissolving the legal boundaries between what a government can do in peacetime and what's allowed in war. This move may have made it easier for Washington to detain or kill suspects, but it has also threatened basic due process rights, thereby endangering us all.
Kenneth Roth is Executive Director of Human Rights Watch.
What are the boundaries of the Bush administration's "war on terrorism?" The recent battles fought against the Afghan and Iraqi governments were classic wars between organized military forces. But President George W. Bush has suggested that his campaign against terrorism goes beyond such conflicts; he said on September 29, 2001, "Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan."
This language stretches the meaning of the word "war." If Washington means "war" metaphorically, as when it speaks about a "war" on drugs, the rhetoric would be uncontroversial, a mere hortatory device intended to rally support for an important cause. Bush, however, seems to think of the war on terrorism quite literally -- as a real war -- and this concept has worrisome implications. The rules that bind governments are much looser during wartime than in times of peace. The Bush administration has used war rhetoric precisely to give itself the extraordinary powers enjoyed by a wartime government to detain or even kill suspects without trial. In the process, the administration may have made it easier for itself to detain or eliminate suspects. But it has also threatened the most basic due process rights.
LAW AT PEACE, LAW AT WAR
By literalizing its "war" on terror, the Bush administration has broken down the distinction between what is permissible in times of peace and what can be condoned during a war. In peacetime, governments are bound by strict rules of law enforcement. Police can use lethal force only if necessary to meet an imminent threat of death or serious bodily injury. Once a suspect is detained, he or she must be charged and tried. These requirements -- what one can call "law-enforcement rules" -- are codified in international human rights law.
In times of war, law-enforcement rules are supplemented by a more permissive set of rules: namely, international humanitarian law, which governs conduct during armed conflict. Under such "war rules," unlike during peacetime, an enemy combatant can be shot without warning (unless he or she is incapacitated, in custody, or trying to surrender), regardless of any imminent threat. If a combatant is captured, he or she can be held in custody until the end of the conflict, without any trial.
These two sets of rules have been well developed over the years, both by tradition and by detailed international conventions. There is little law, however, to explain exactly when one set of rules should apply instead of the other. For example, the Geneva Conventions -- the principal codification of war rules -- apply to "armed conflict," but the treaties do not define the term. Fortunately, in its commentary on them, the International Committee of the Red Cross (ICRC), the conventions' official custodian, has provided some guidance. One test that the ICRC suggests can help determine whether wartime or peacetime rules apply is to examine the intensity of hostilities in a given situation. The Bush administration, for example, has claimed that al Qaeda is at "war" with the United States because of the magnitude of its attacks on September 11, 2001, its bombings of the U.S. embassies in Kenya and Tanzania, its attack on the U.S.S. Cole in Yemen, and the bombing of residential compounds in Saudi Arabia. Each of these attacks was certainly a serious crime warranting prosecution. But technically speaking, was the administration right to claim that they add up to a war? The ICRC's commentary does not provide a clear answer.
In addition to the intensity of hostilities, the ICRC suggests considering factors such as the regularity of armed clashes and the degree to which opposing forces are organized. Whether a conflict is politically motivated also seems to play an unacknowledged role in deciding whether it is a "war" or not. Thus organized crime or drug trafficking, although methodical and bloody, are generally understood to fall under law-enforcement rules, whereas armed rebellions, once sufficiently organized and violent, are usually seen as "wars." The problem with these guidelines, however, is that they were written to address political conflicts rather than global terrorism. Thus they do not make it clear whether al Qaeda should be considered an organized criminal operation (which would not trigger the application of war rules) or a rebellion (which would).
Even in the case of war, another factor in deciding whether law-enforcement or war rules should be applied is the nature of a given suspect's involvement. Such an approach can be useful because war rules treat as combatants only those who are taking an active part in hostilities. Typically, this category includes members of a military who have not laid down their arms as well as others who are fighting or approaching a battle, directing an attack, or defending a position. Under this rule, even civilians who pick up arms and start fighting can be considered combatants and treated accordingly. But this definition is difficult to apply to terrorism, where roles and activities are clandestine and a person's relationship to specific violent acts is often unclear.
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