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?

At the same launch Juan Mendez IBAHRI, Co-chair, UN Special Rapporteur on Torture said: 

The whole tendency after 2001 was to pretend that terrorism was such a new phenomenon, and of course it was different in significant ways after September 11, but it was such a new phenomenon that it allowed States to righten the clean slate as it were.  This report obviously takes the opposite view.  No matter how novel the situation created after 9/11 there wasn’t a clean slate, there was a set of obligations (legal and moral) that had to be respected by States no matter what type of choices they made in pursuing terrorist organisations.  This sense that you could re-write laws of war and re-write the laws of human rights because this was an exceptional situation brings up the ugliest face of exceptionalism…Every dictatorship that I have had the obligation to be engaged with in my human rights work have always invoked some kind of exception, some kind of  state of exception, some kind of necessity not contemplated by international law.  In that sense it’s important to point out what the legal framework is and also to signify that the legal framework does not unduly tie the hands of the people who in good faith fight against terrorism…States do have a choice to attack or counter-attack terrorism as a law enforcement option or as an armed conflict option but those choices are not wide open….So the rhetoric of calling something the war on terror..cannot be extended to apply without limits to a war that doesn’t have a geographical limit or a temporal limit and cannot allow the use of deadly force to be applied in situations that are completely extraneous to armed conflict per se.

The Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights takes a similar approach, opining that:

The Panel considers that the US has conflated two distinct legal regimes by treating “acts of terrorism” as “acts of war”.  The conflation has had profoundly negative consequences…In proclaiming its “war on terror”, the US failed to make the crucial distinction between terrorist acts which take place within a setting of armed conflict, and terrorist acts falling outside of armed conflict….The United States, one of the world’s leading democracies, has adopted measures to counter terrorism that are inconsistent with established principles of international humanitarian law and human rights law.  Erroneously conflating acts of terrorism with acts of war, the United States Government proclaimed a “war on terror”, thereby misapplying war rules to situations not entailing armed conflict as understood by international humanitarian law.  In genuine settings of warfare, it distorts, selectively applies and ignores otherwise binding rules, including relevant principles of human rights law.  Other States have been complicit in some of the practices that have flowed from the war paradigm, and it is vital that the serious human rights violations that have occurred now be repudiated and remedied.  The damage done to the rule of law must be repaired and the importance and value of upholding international humanitarian law and human rights law during all armed conflicts must be re-affirmed.

The Panel made a series of key important recommendations which are worthy of consideration by the international community.

Now the focus is on Pakistan.

Many questions need to be answered about what’s going on there, and quite rightly so, but in the interests of accountability and transparency tough questions still need to be answered by everyone involved in the ongoing “campaign” in Afghanistan. Many questions apply to both “engagements”.

How extensive are [commando] night raids? Who carries them out? What kill lists exist and how are people placed on them? Who is carrying out drone attacks? Does the CIA? What training do operatives receive? To what extent do the CIA and Department of Defence interact operationally (if at all)? In relation to drone attacks, when and where are the CIA authorised to kill? By what criteria are individuals who are killed identified? What follow up is there when the civilians are killed? What is the nature of the armed conflict in Pakistan ? What are the rules of engagement?

Is independent journalist Jeremy Scahill correct in reporting the following? 

In 2006, the Bush administration struck a deal with the Pakistani government that would allow US special operations forces from the Joint Special Operations Command to enter Pakistan with the understanding that they were, quote, "following the target," and the target being Osama bin Laden and his top deputies. As part of that agreement, the Pakistani government insisted that they have the right to, A, deny that the United States had permission to enter the country, and B, be able to condemn US actions in their country as a sort of violation of their sovereignty. But the understanding was struck in 2006.

Will the British and United States governments support Philip Alston’s recommendation that the UN Human Rights Council investigate conduct by both the Taliban and US and British military,  and his suggestion that the UNHRC model that inquiry after the investigation of the Israeli military’s actions in the Gaza Strip?

Investigative journalist Adam Curtis raised some uncomfortable questions about the “war on terror” in his 2004 BBC documentary ‘The Power of Nightmares’, but what was the response? Is there any merit in what he says?

Australian taxpayers are funding a substantial contribution to the campaign in Afghanistan. That there is still not a united legal opinion about its legality, that a former senior government minister can’t say whether or not it's actually a war even after his government staged a “debate” about it, and that important questions continue to go unanswered, suggests that we - the Australian public – should be standing up to demand from our government a lot more transparency and some real accountability.

Would we so easily condone similar undertakings - such as those being undertaken by the United States - by other countries?