War on terror is beyond the joke


Terry Jones's War on the War on TerrorLong after George W. Bush has left office, his 'war on terror' rumbles on, even if the term has been used rather less of late.

The US Congress' current proposals to allow indefinite military detention of its citizens without charge or trial, and America's ongoing use of unmanned attack aircraft ('drones') in Pakistan, Yemen and elsewhere to assassinate opponents (including at least one US citizen), highlight anew the need for clear thinking when it comes to that much abused term, 'war', and what the law of war actually allows.

Many people have commented that 'war on terror' is a nebulous term. Terry Jones, of Monty Python fame, asked, in Terry Jones' War on the War on Terror: 'How do you wage war on an abstract noun? ... It's well known, in philological circles, that it's very hard for abstract nouns to surrender.' Richard Jackson notes that the phrase was used to build up a good-evil duality and to desensitise us to the human rights violations which the new 'war footing' would involve.

Even if one accepts the dubious premise that there is a war on, however, war has not been law-free for a very long time. Ever since St Augustine proposed requirements for a 'just war', international law has set limits on how one may conduct hostilities.

It is true that there are fewer laws governing conflicts which do not have countries as belligerents on both sides, than there are for those that do. The bulk of the four Geneva Conventions of 1949 only apply to the former. Nevertheless, other conflicts are not 'law free'.

Even if hostilities involve non-state actors, common article 3 of the Conventions and customary law mandate certain minimum standards. Recent developments, especially the authorisation of extra-judicial killings and detentions of US citizens by American forces, suggest that states need a reminder of international law obligations owed to people found in a 'war' zone.

Firstly, international law only recognises a distinction between combatants (who carry arms openly and take part in hostilities and are therefore legitimate targets) and civilians. Importantly, one is either a combatant (even if not part of the armed forces or a regular military formation) or not. 'Unlawful enemy combatant' is a label invented by the Bush administration in an attempt (rejected by the US Supreme Court) to avoid having to apply common article 3 to people it had captured in Afghanistan.

While they may not have all the rights given to prisoners of war, common article 3 prohibits the following in respect of captured combatants or civilians:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The 'new' climate of 'terrorism' (always ill-defined and not really new) scarcely seems to require a new legal architecture. Civilians involved in torture or attacks on armed forces or other civilians may be tried for such attacks (provided the trial is fair). Under laws going back centuries, treason charges can be brought against citizens who wage war against their own states.

Indefinite detention without trial is not permitted under international law.

The International Committee of the Red Cross (which the international community has tasked with acting as the 'guardian' of the Geneva Conventions) has recently reiterated the illegality of targeted assassinations where the victim is not a combatant or is outside the area of military operations.

It is true that the other side does not always play by the same rules. Nevertheless, the military itself is often most in favour of complying with international law. This is not only because it wishes to avoid generating sympathy for the insurgents but also because it recognises that captives from its own side are likely to face similar treatment.

Failure to heed these lessons may serve to inflame, rather than quell, international terrorist threats. 

Justin GlynJustin Glyn SJ is a Jesuit scholastic studying theology and philosophy in Melbourne. He previously practised law in South Africa and New Zealand. He completed a PhD in international and administrative law in 2008. 


Topic tags: Justin Glyn, War on Terror, George W. Bush



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Existing comments

A welcome article, thank you! We should think about the rationalising we breathe in every day. Consider the murder of tens of thousands of non-combatants/civilians by bombing in the Second World War, by both sides of the conflict, and the deliberate targeting of civilian populations in Hiroshima and Nagasaki, by the Allies, for atomic barrages. Ponder the terrorist acts and invasion of sovereign countries in 'police actions' thereafter, and the subsequent (and arguably consequent) abuses of prisoners-of-war. It is an age-old truth. War, tagged as such, or described as terrorism, is murder and is often state-sanctioned murder. International law is only as strong as the will of those who draft it, and the world's remaining superpower has given scant notice to the ethical conduct of war or the just treatment of combatants/non-combatants for a considerable length of time. The phrase 'One man's terrorist is another man's freedom fighter', said to have been coined in Gerald Seymour's 1975 book 'Harry's Game', has never been more appropriate. Culpability is not removed by political allegiance. War crimes are not rendered righteous by rhetoric. If history is indeed as Churchill opined 'written by the victors' then it may also prove to be, eventually, edited by the remnants of damaged, disempowered peoples.

Barry G | 21 December 2011  

Great article. The blatant abuse of human rights perpetrated by the US, will come back to bite them big time. How can they expect their people, soldiers or otherwise, to be treated humanely, when they have led the world in cruel and blatantly unacceptable practices that cut to the very core of decency. They have made it a very dangerous place for their own people, in the disguise of protecting them. It now seems to be an open book for enemy combatants who capture a citizen of the empire,triggered largely by the dastardly deeds of the US.

Dwilson | 21 December 2011  

Bush took his "good-evil duality" and his "if you're not with us, you're against us" policy justification and propaganda openly and directly from his God-is-on-our-side evangelical, irrationally simplistic faith, proving the veracity of the apt idiom of one man's freedom fighter being another man's terrorist (or war criminal). All the intellectual soundness, perfectly reasoned, rational and humanely objective expertise of people such as Justin Glyn and the lessons of history become superfluous, when the world's arsenal is repeatedly controlled by dangerously theocratic fanatics of muderously opposed denominations.Terms such as "just war" become brutal euphemisms, like "extraordinary rendition"; "collateral damage"; "friendly fire"; "axis of evil"; "coalition of the willing"- all in the service of encouraging everyday people to rejoice in state sanctioned summary revenge killings, viewed via live satellite footage by the current US President and his minions - "We got him!". As a member of the coalition of the willing, I guess that makes us Australian "Christians" winners, too.

Michelle Goldsmith | 21 December 2011  

Terrorist attacks put fear into us all, which is exactly what the perpetrators intend. But are they any worse as a weapon of war than any other method? Horrific though they are, are they any worse than bombings (as was done in Iraq and Afghanistan) or drone attacks which seem to have a big side kill. In fact, the number of non combatants killed by terrorists would be far fewer than those killed by acceptable conventional means. The real evil of terrorist attacks is that they are able to get under the sophisticated defences of rich societies. They are one of the few effective ways that poor people with a cause can be effective against the massive military machines of the powerful. The war on terror is as much a program to maintain the supremacy of modern expensive military machines as it is about protecting the victims. Perhaps, we need to concentrate on why people are willing to volunteer to die as terrorists for their cause. Is it really blind adherence to a religious cause, or is it a reaction to a perceived injustice perpetrated by the target community. Certainly there is some of the former, as with the attacks on Soufi mosques in Pakistan, but the West needs to look at how we are perceived by by those who target us.

John Stafford | 01 January 2012  

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