The elusive war for minds and morality

Last week Lindsay Tanner said on Q&A:

 I think everything depends on whether or not you see the conflict between the west and Al Qaeda as a war. I think that’s the central question and it goes also to that specific question as well.  If this is a war, as it is said to be and, of course, the word war is a very over-used term – we have the war on drugs, the war on crime, the war on this and that and the other – but if it is a war.

 Is it a war? 

If this engagement is something that a former senior member of the current government is unclear about 10 years down the track, then it’s about time we started asking some serious questions to clarify the ambiguous definition of what the war is.

What an intriguing thing for a former member of the current government to say, especially after the parliamentary debate on the war in Afghanistan.

Harold Koh, the US legal adviser, describes the “Law of 9/11” as follows:

We live in a time, when, as you know, the United States finds itself engaged in several armed conflicts…In the conflict occurring in Afghanistan and elsewhere, we continue to fight the perpetrators of 9/11: a non-state actor, al Qaeda (as well as the Taliban forces that harboured al-Qaeda)….Everyone here at this meeting is committed to international law.  But as President Obama reminded us, “the world must remember that it was not simply international institutions – not just treaties and declarations – that brought stability to a post-World War II world..[T]he instruments of war do have a role to play in preserving peace.

If this is suggesting that the United States has a continuing right to self-defence that is open-ended then we should pause for thought. 

Former Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, quite rightly asks:

How do you define self defence? The traditional approach was always that it's got to be in response to an attack that’s imminent etc etc.  The US has taken that doctrine and said we were attacked on 9/11 and we continue to be attacked by al Qaeda, Taliban and its affiliates all around the world and therefore we have a continuing right to self-defence to respond to any imminent threat.  It stretches the whole notion of self-defence way beyond breaking point and its sets up a policy which translates into “we have the right to kill anyone, anywhere in the world if we deem them to constitute a threat to our security" and I don’t think that’s a policy that can be sustained more generally if other States were to take it up.  It would lead to anarchy, chaos.

At the launch of the International Bar Association’s book ‘Terrorism and International Law: Accountability, Remedies, and Reform’ earlier this year Justice Goldstone said: 

The rhetoric on the war on terror has stood in sharp contrast to the belief of many that terrorist threats are the proper purview of policing and the criminal law and criminal justice rather than military intervention and the law of war and the talk of war….Some nevertheless have even questioned even whether contemporary international law is equipped to meet the challenges of modern terrorism.  Complex legal questions have confronted governments and law makers alike.  Many questions have been asked.  Do states' human rights obligations apply extra-territorially? Does the use of force and counter-terrorism constitute armed conflict with a consequence that international humanitarian rights laws should apply? If so, what is its relationship to human rights law?