war crimes

Terrorism, Acts of War, and Military Trials

As you’re probably already aware, there’s been some disagreement with the Obama administration’s plan to try alleged 9/11 mastermind Khalid Sheikh Mohammed in a New York civilian court. Among the objections is the claim that trying terrorists in civilian court commits one to a “law enforcement” view of terrorism rather than a “war on terrorism” approach. Now as a general rule, I’m rather opposed to the rather overworked and almost always grossly misleading War on an Abstract Noun language. By and large, our WoaANs have effectively been wars on drug users and poor people – or most often, a twofer of poor people who use drugs.

That said, the war metaphor might not be as problematic in the case of international terrorism. Certainly many terrorists invoke war language to describe their actions. So should we take terrorists at their own word, and accord them military trials (which generally entail fewer protections for the defendants than do civilian trials)? Matt Yglesias says no, claiming that if you do so:

you partake of way too much of the terrorists’ narrative about themselves. It’s their conceit, after all, that blowing up a bomb in a train station and killing a few hundred random commuters is an act of war. And war is a socially sanctioned form of activity, generally held to be a legally and morally acceptable framework in which to kill people. What we want to say, however, is that this sporadic commuter-killing isn’t a kind of war, it’s an act of murder. To be sure, not an ordinary murder—a mass murder—but nonetheless murder.

But not so fast, says Norm Geras.

The opposition Matt sets up here between war and crime – between ‘a socially sanctioned form of activity, generally held to be a legally and morally acceptable framework in which to kill people’, on the one hand, and murder or mass murder, on the other – is too sharp. War may (sometimes) be legally and morally acceptable, but that doesn’t mean there is no criminality within war. There is – as defined by the laws of war. One is not therefore bound to choose between treating individuals as participating in a war and treating them as criminals, if that is what they are. Under the assumption of universal jurisdiction, international humanitarian law allows for war criminals and those responsible for crimes against humanity to be prosecuted in the civilian courts of any country. And terrorism is murder even when it is ‘a kind of war’.

Now I’m inclined to agree with Geras to a degree. The line between terrorism and war crimes is not as bright as Yglesias makes it out to be. I am personally inclined toward the view that terrorism is best defined as the deliberate targeting of noncombatants to achieve a political objective. That makes the 9/11 attacks and the Ft. Hood shootings both acts of terrorism, albeit on different scales. But that definition also makes the allied firebombings of Dresden and (at minimum) the atomic bombing of Nagasaki acts of terrorism. The latter two acts are also rightly defined as war crimes and should have been treated as such. (And, yes, I am fully aware that only the losing side is ever actually tried for its war crimes. It doesn’t make such acts any less criminal.)

But not all acts of terrorism are acts of war. I think one would be hard pressed to give any sort of plausible story that portrays Tim McVeigh’s bombing of the federal building in Oklahoma City as an act of war. The same goes for the Unabomber, the DC Sniper and the Ft. Hood shooter. Terrorists, yes. War criminals? Not so much.

KSM and 9/11 is a tougher call. Indeed, I think it’s something of a judgment call. I could probably get on board with either side – or, at the very least, I’d say that it’s a question about which reasonable people can reasonably disagree.

Still, I think that there is a serious risk of inconsistency present for many of those who are now arguing for treating KSM as a war criminal. As Geras rightly points out, international humanitarian law does in fact allow for war criminals to be prosecuted in the courts of any country. That specific international humanitarian law is the Fourth Geneva Convention. Article 146 specifies that signatories “shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” Those “grave breaches” are defined in Article 147 as:

those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

That pretty well describes the 9/11 attacks and KSM, and I think that anyone wanting to try KSM as a war criminal is legally in bounds to do so. But if one does wish to use the Fourth Geneva Convention to define KSM and company as war criminals, one will also probably need to pay attention to the last sentence in Article 146, which reads:

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949.

In plainer English, that means that if you want to try someone as a war criminal, you have to treat him as a prisoner of war. Meaning no “cruel treatment and torture,” and no “outrages upon personal dignity, in particular humiliating and degrading treatment.” Which pretty much rules out waterboarding the dude 183 times.

So here’s the deal. If you think that the Geneva Convention’s prohibitions on torture somehow don’t apply to KSM, then it’s a bit hypocritical to argue now that he’s a war criminal. If you’re going to charge someone with war crimes under international law, then that same law also requires that you treat them as prisoners of war. In other words, a war criminal gets the full set of Geneva Convention protections, not just the ones that happen to best fit your preconceptions (or, perhaps more to the point, not just the ones that best line up with the agenda of your favored political party.)

*Note: Just to be clear, I’m not accusing Geras of inconsistency. He actually supports trying KSM in civilian court and has argued that those who tortured KSM should be prosecuted. I don’t know of anyone specifically arguing both for torturing KSM and for now treating him as a war criminal, though I do recognize that there is one particular political party whose members by-and-large were okay with torturing suspected terrorists at Gitmo and who are now outraged at the decision to try him as a civilian. It’s unclear to me how many members of that subset are interested in attempting to justify that split on any sort of rational grounds and how many of them are simply okay with whatever Their Side does and displeased with whatever The Other Side does.

The Case for Genocide Prevention

Okay, so no one is actually arguing against preventing genocide. But both Matt Yglesias and Ambassador At Large argue that the Very Serious People who tend to equate preventing genocide with armed intervention are missing the boat. Matt complains that

But then whenever anyone suggests that the U.S. commit itself to following international law and not using non-defensive military force absent a UN Security Council authorization, people show up insisting that we need to maintain the right to unilateral non-defensive war in order to stop genocide. Then whenever humanitarian emergencies break out, we do nothing to stop them. But the larger cause of unilateral militarism lives to fight another day. Or something.

– snip –

Conflict resolution, conflict prevention, and peace enforcement when/if an agreement is in place is where the action is at.

With all due respect to Matt, I think this is slightly confused. Or, to be more precise, it’s something of a non sequitur. Matt is exactly right that conflict resolution, conflict prevention and peace enforcement are where the action is at. But that hardly entails that it’s somehow wrong to insist on a right to unilateral non-defensive war to prevent genocide. Matt seems to be conflating the justification of unilateral military action with the decision about whether (and how) one ought to intervene in any particular humanitarian crisis. Or, to be more technical, Matt’s objection appears to misunderstand that armed humanitarian intervention is an imperfect duty.

The case for armed humanitarian intervention is complicated, but at bottom it boils down to understanding what it is that sovereignty does and does not entail. Michael Walzer, however, offers a compelling take on the relationship between sovereignty and armed intervention. Walzer’s notion of sovereignty is robust: As long as there is a certain sort of “fit” between a government and its citizens, the state is legitimate and its government must be allowed to govern free from outside interference. But, Walzer says, a government that engages in the wholesale slaughter of large chunks of its citizenry is one that loses its sovereignty. Such “states” have effectively reverted to a Hobbesian state of nature. When sovereignty vanishes, so too does the right of non-intervention. Legitimate states are now morally permitted to step across territorial borders, stop the slaughter, and create space for the beleagured residents to establish a legitimate sovereign state.

Of course, determining exactly when a state has lost its sovereignty is a notoriously tricky matter, and it’s one that is very much prone to abuse. Putting international laws in place (and agreeing to abide by those laws) should help to cut down on potential abuse. Except, of course, when it doesn’t (see Iraq and the recent Georgia/Russia unpleasantness). Moreover, those same international laws can easily be used by self-interested parties to prevent intervention is cases where it is clearly merited (see China in Sudan or China and Russia in Kosovo). I’m as big a fan of cosmopolitanism as the next guy, but we can’t let our love for a cosmopolitan ideal blind us to the rather dismal humanitarian record of existent international organizations. When the Security Council begins looking to Samuel Beckett for behavioral clues, someone else will have to step up to the plate. That’s why those who argue for a right to “unilateral non-defensive war in order to stop genocide” are not wrong to do so.

Nor is that belief actually inconsistent with never actually sanctioning any intervention. As Walzer also says, in practice, it’s wrong to intervene (even to stop genocide) if your intervention is unlikely to make things any better. So if I am making decisions for, I dunno, Lichtenstein, I might well hold that my nation has a right to intervene militarily in order to prevent genocide but also hold that there are no actual situations in which my intervening will make things better. Obviously that’s not a particularly good parallel for the U.S., but the point remains: one can think that the U.S. has a right to intervene unilaterally while also thinking that there are few (if any) cases in which the U.S. ought to intervene.

That’s because armed humanitarian intervention is an imperfect duty. A perfect duty is one that takes the form, “One must always (or never) perform action A in circumstance C.” Imperfect duties take the form “One must sometimes and to some extent perform action A in circumstance C.” Charity is a good example of an imperfect duty; I need not hand out money to every person who asks me for it, but I should give some money to some people sometimes. When, where and how much depend upon my own particular circumstances.

Armed humanitarian intervention is like that. We probably ought to intervene in some cases. But there is rather a lot of room to disagree about (a) what constitutes the right sort of case for intervening, (b) whether this is such a case, (c) whether we are actually capable of intervening successfully, and (d) if so, whether now is the right time for us to be discharging our duty to intervene.

It’d be wrong to dismiss the claim that we have a duty to (sometimes) engage in armed humanitarian intervention on the grounds that either we don’t discharge it very often or (as Ambassador At Large argues) because it’s really hard to do. Neither is a particularly good reason for thinking that we ought simply to stop talking about AHI.

Of course, simply talking about AHI is also not a particularly good substitute for actually, like, doing things to prevent situations where AHI is needed in the first place. On that point, I’m in total agreement.