What Kind of War Is It?
Kenneth Anderson
(from
the Times Literary Supplement)
Last week, nine months after his inauguration, George W. Bush irrevocably
became President of the United States. No matter what one thought
of the election fiascos, the first political consequence of last
Tuesdays attack on the United States was an understanding
that there was indeed a structure of authority behind which Americans
would unite. America, in a crisis of the first order, was peculiarly
in the hands of the President and his administration, and it no
longer mattered how they had got there, but simply that they were
there.
Yet Bushs brief speech on Tuesday night inspired few. The
nation seized on the only substantive remark in the address
the announcement that the United States would not distinguish between
the terrorists who committed the attack and those countries which
harboured them and wondered what it meant. The speech, along
with follow-on statements from senior administration officials,
waffled unconvincingly between the two principal conceptual frameworks
of response: on the one hand, going to war, overtly, covertly, or
both; and on the other, pursuing criminals, under US domestic law,
international law, or both. Still more disturbingly, administration
statements sometimes seemed to suggest that the administration did
not comprehend that there might be a difference between them.
It had all the hallmarks, in other words, of the anti-terrorism
strategy that the Clinton administration had followed for nearly
a decade, so evidently in ruins, yet without even the evanescent
but still momentarily consoling Clintonian sharing of our pain.
Tuesday nights speech could have been a moment for Lincolnian
rhetoric, for treading the grapes of wrath, and the
imminence of a terrible swift sword. It could have been
a time for the clarity of de Gaulle, who understood that the world
is not the same as a domestic legal jurisdiction and that the remit
even of lawyers and judges, subpoenas and indictments, arrests and
convictions, must somewhere come to an end, to be replaced by something
else. But Bushs Tuesday speech neither moved us nor clarified
the situation.
Friday, September 14, marked by the speech he delivered at the conclusion
of services for the dead and missing in Washingtons National
Cathedral, was the day that Bush finally assumed the mantle of the
Presidency. As a religious service, it was conspicuously traditional
in its scriptures, homilies and hymns.
Bushs message was straightforward: mourn the dead, pray for
the survival and rescue of the living, and be steadfast in carrying
war to the enemy. It contained, fittingly, an oblique echo of Lincoln
and the Second Inaugural Address, in which Bush warned that America
had neither sought nor begun this conflict, but that it was now
liable to finish it, in a way and an hour of our choosing.
The service concluded (as also heard in the service at St Pauls
in London) with the Civil War marching song, The Battle Hymn
of the Republic a song whose bellicose nationalism
and religiosity (despite its impeccable anti-slavery credentials)
would, just a few days before, have been considered in strikingly
poor taste by Americas fashionably supranationalist elites.
The language of just war had, for the moment, prevailed over its
rivals.
But what, precisely, are its rivals? Given the religious origins
of just-war doctrines, it was perhaps appropriate to hear attempts
to articulate an alternative religious view at the prayer service
I attended with my family at the United Methodist Churchs
Washington DC headquarters, the same day as the National Cathedral
service. Rather than The Battle Hymn of the Republic,
the Methodist service ended with a young child singing a verse of
We Shall Overcome, with the words we shall live
in peace.
The preachers struggled mightily to distance themselves from naive
pacifism, while at the same time they proclaimed a vision of peace
that was frankly eschatological a peace for the end of time,
a reign of peace for the city of God the connection of which
to the present situation was less than apparent.
It was clear just how far Americas mainstream religious denominations
have strayed (principally in pursuing the anti-nuclear campaigns
of the 1980s) from traditional Christian concepts of just war and
tranquillitas ordinis, the maintenance of a just and ordered
political society, within which the people of God might pursue their
salvation in fear and trembling, but without pretending that the
fact of an ordered society constitutes the eschatological peace
of the end of time. Tranquillitas ordinis, as conservative
Catholic writers such as George Weigel have noted, recognizes not
merely the powers of Caesar but, within limits, his legitimacy.
Preaching instead the peace of the end of days gives the Church
a permanently transcendental place from which to criticize the temporal
order. This has certain uses, but is liable to become utopian pacifism
or quietism, the pursuit of individual, inner peace.
Pacifism is a coherent theological and moral position, but the preachers
at the Friday night service I attended seemed to want it both ways,
to maintain the moral purity of pacifism while still sounding relevant
to the real world of conflict, sin and death. They recognized the
inevitability of armed retaliation, but elided the question of its
legitimacy. They thus deprived themselves, it seemed to me, of the
rich moral frameworks that Christianity, Judaism and indeed Islam
have developed over millennia, frameworks which simultaneously authorize
but also morally limit armed force.
Inevitably the preachers reached, as in other churches across the
land, for the words of Isaiah 2: 4, they shall beat their
swords into ploughshares, and their spears into pruninghooks: nation
shall not lift up sword against nation, neither shall they learn
war any more. It is curious how infrequently this exemplar
of eschatological peace is connected with the conditions which the
prophet specifies for it to come about: And it shall come
to pass in the last days, that the mountain of the Lords house
shall be established in the top of the mountains, and shall be exalted
above the hills; and all nations shall flow unto it. And many people
shall go and say, Come ye, and let us go up to the mountain of the
Lord . . . . For out of Zion shall go forth the law, and the word
of the Lord from Jerusalem.
The conditions of eschatological peace, in other words, are the
establishment of a world order: a place to which all nations shall
flow, and out of which shall come the law. Today, secular elites
have embraced their own version of eschatological peace. It relies
on the premiss of world governance, a structure of law that will
bind all nations and peoples, and so finally establish peace. In
the world today, the dream of Isaiah has been embraced by international
lawyers.
In the immediate wake of the attacks, these voices were muted. They
have begun to re-emerge, however, arguing that international law
provides a framework for response that the United States is morally
and legally obliged to follow. The essence of the international-law
framework as a basis for a response to attack is articulated by
a professor from Harvard Law School, Ann-Marie
Slaughter, in the Washington Post (August 16). Asserting
the commonly held view of professors of international law, she says,
quoting the UN Charter, that In the case of an act of aggression,
the Security Council must authorize an armed response by one or
many nations. States retain their right of self-defense, particularly
in response to an armed attack, but only until the Security Council
has taken measures necessary to maintain international peace and
security. The reading that Professor Slaughter here
gives the Charter emphasizes that, even in response to aggression,
the Security Council must be the party to authorize
an armed response. Self-defence is seen as a short-lived right to
self-protection until the Security Council shall have taken matters
in hand.
This is not, to say the least, the understanding that the United
States has taken of the UN Charter. It is also strangely at odds
with the view that many of these same international lawyers took
on the Kosovo war a US and Nato military action which could
not conceivably be characterized as self-defense under
the strictures Ann-Marie Slaughter imputes here, and one which was
never authorized by the Security Council. These experts remained
silent on the violation of international law in the Kosovo conflict,
apparently believing that, in this special case, international law
had to give way to European and American moral sensibilities. Why,
one may wonder, in that case, but not in this? Professor Slaughter
is careful to add that, if the US cannot get Security Council approval,
it must at least turn to Nato, for moral, if not legal,
approval of US action. But this position is at odds with international
law itself; Nato, however much its members may regard it as a specially
privileged moral organ of the world, is legally merely a body of
collective security, with no special standing in international law
that could substitute for the Security Council.
In current circumstances, when, for reasons of their own, Russia,
China and France as Security Council members have all given assent
(for the moment) to US action, it may be a temptation for the Bush
administration to accede to this process of seeking to legitimize
its actions under the international law professoriats view
of international law, especially given the administrations
evident desire to re-create the original Gulf War coalition.
This would be, however, a mistake of a grave order. In seeking to
satisfy the inflated expectations of international law as seen by
those international elites (whose principal desire is to expand
the brief of international law itself), the US would bury itself
in procedural arguments, fruitless attempts at consensus,
vetoes from militarily irrelevant but morally preachy states, and
endless consultations rather than action as surely as the
Soviets buried themselves, for other reasons, in Afghanistan.
The coalition that George Bush Snr created for the Gulf War cannot
be re-created for the present struggle. Although, in the Gulf War,
the principle of territorial sovereignty was endorsed by all parties,
the principals today will very shortly fall out over how to define
terrorism. In the Gulf War, moreover, there was a clear path to
victory, even if it might require considerable blood and treasure;
no one can see a clear endgame to terrorism.
No one can doubt the importance of the assistance other countries
can give in intelligence gathering, overflight permissions, arrests
and detentions, shutting down of terrorist financing, and so on.
Yet France is already moving away from any open-ended endorsement
of US military action, Russia has already ruled itself out as a
staging area against Afghanistan, and retreats by other countries
will soon follow. The coalition that Secretary of State Colin Powell
seeks will be built on an unstable combination of countries that
will join for some kind of often oblique quid pro quo. Europe will
press for the US to soften its stand against the International Criminal
Court (ICC), which heretofore the US has rejected outright. A certain
pressure is likely to build on the US, not to join nothing
so direct but instead to accept that the ICC is the logical
tribunal to hear cases against captured terrorists, rather than
US courts. The United States, however, should not feel obliged to
thank its friends by giving up its own core moral commitments, should
not allow itself to be held hostage to an unstable multilateralism.
Second, Europe is likely to join a coalition in return for the privilege
of restraining the US from actions that it might otherwise take.
European countries will see their role in a coalition quite
sincerely, to be sure, and drawing from their own considerable experience
in dealing with terrorism as that of impeding the US from
more impetuous action; the same restraining role, in other words,
which prevented the first Bush administration from completing the
job it ought to have done to bring down the Baghdad regime in the
Gulf War.
The argument for restraint has practical merits which must seriously
be weighed by the US. What exactly does the US plan to attack that
is worth the trouble, including collateral damage to non-combatants?
Is there any worthwhile target that can be achieved by military
forces? What might be the unintended consequences? (After all, Osama
bin Laden himself is partly an unintended by-product of Americas
proxy war against the Soviets in Afghanistan.) A healthy scepticism
about what military action can accomplish is an invaluable part
of military planning. For the international lawyers, however, for
whom the most important part of the exercise is not to attack terrorism
but instead to use the crisis as a way to build their quasi-religious
venture in international governance, the argument for restraint
will be built around the concept, found in both just war theory
and international law of armed conflict, of proportionality.
Proportionality is indubitably a crucial moral factor in conducting
just war; the question, however, is proportionate to what?
It appears that over 5,000 people will have perished in the attacks
on New York and Washington. Does that suggest a yardstick of innocent
civilian casualties that could result from US action as a proportionate
response?
It cannot, however, because the US response should seek to minimize
any innocent civilian casualties, since in fighting the just
war, noncombatant civilians may not be a target. The appropriate
measure, the one ignored by the Gulf War coalition in failing to
destroy Saddam Husseins military machine and bring down his
regime, is not the damage caused by the original attack, but the
magnitude of the threat posed. It is this that justifies the level
of response even if, seen in relation merely to the actual
number of people killed in the attack, or the damage to property
caused, the response seems somehow disproportionate.
It is true that the United States, if it is to conduct just war
and not merely war against these terrorists and their supporters,
must adhere to the rules as laid down in such bodies of law as the
Geneva Conventions. It should, however, be these laws as traditionally
interpreted by the United States, and not as expansively reinterpreted
by international tribunals and self-appointed human rights NGO referees.
Those rules do not require, as Ann-Marie Slaughter surprisingly
says they do, that we fight soldiers rather than civilians;
they require, rather, that in fighting whoever fights us, whether
soldiers, terrorists or otherwise, we do not aim at noncombatants
and that we minimize collateral damage to non-combatant civilians
and their property, consistent with imminent and specific military
necessity. The difference is fundamental. Professor Slaughter says
that the coordinated planning and militaristic actions lend
the status of soldiers. This is not the case. As a matter
of black-letter international law of war, these terrorists do not
meet the definition of soldiers entitled, for example, to the protections
of the Third Geneva Convention regarding prisoners of war. The terrorists
benefit from no privilege as soldiers under the laws of war, because,
as their declared, actual and systematic method of warfare, they
deliberately and knowingly targeted civilians and civilian objects.
They are therefore, legally speaking, unprivileged combatants
to be fought on military terms with respect to non-combatants
in their midst, but if captured treated as criminals.
What Professor Slaughter urges, along with others such as Michael
Ignatieff (Financial Times , September 13), is not an
ethics of warfare at all. It is that the United States abandon both
its rhetoric and preparations for war, and instead approach the
problem of terrorism with a combination of international criminal
law and the criminal laws of the United States and other countries.
But the international criminal law to which Professor Slaughter
refers various treaties on terrorism, hijackings and hostage
taking has been less than conspicuously successful in combating
terrorism. And it is, frankly, hard to take seriously her invocation
of UN General Assembly resolutions on the subject. These efforts
are bound to founder, because there is no general agreement on what
constitutes terrorism and, given the profound differences
among peoples and their perceptions of the rightness of differing
causes, there will not be one any time soon.
Likewise, it is hard to agree with Ignatieff that the most
effective response may not be the instant vengeance of a cruise
missile but concerted international police work that leads to arrest,
extradition, trials and imprisonment of the perpetrators.
It is surely clear that the past decade of concerted international
police work has not worked. While no one would disagree that there
is a sizeable role for such police work, it cannot be effective
so long as terrorist groups have safe havens in particular states.
The solution to this problem, at least at this point, can only be
military force or its credible threat. The Bush administration clearly
has no interest in Clinton-style cruise-missile attacks aimed cynically
at CNN coverage with little follow-up and ultimately nothing to
show for them. A measure of American seriousness will be the degree
to which the administration can resist domestic pressure for quick
strikes in favour of the months of intensive planning that sustained
operations will require.
The only thing recommending the purely criminal-law strategy urged
by Ignatieff has been, up to now, that it did not arouse the passions
of Arab populations. This was not, however, because these populations
thought the criminal-law procedures and court trials of Western
democracies were somehow more legitimate or just than military action,
or covert military action. It was because such reliance on criminal
law alone has been, as we now know, ineffective. Quiet, unspectacular
police work unfortunately failed to prevent the emergence of a cadre
of suicidalists of far greater sophistication and dedication than
ever seen before.
Because, in these circumstances, confronting terrorism requires
both police work and military action, it is vital that the US be
prepared to distinguish sharply between the two, at the levels of
both metaphor and action. Ever since the confrontation between the
first Bush administration and Manuel Noriega in Panama, in the late
1980s, American military excursions have been characterized by an
unfortunate mixing of the metaphors of police work with war. The
characteristic act of war-making in recent years has been, not a
concerted campaign to destroy an enemys will and ability to
resist through its armed forces, but instead the formation of a
military posse, sent abroad to arrest some bad guy. Thus the first
Bush administration sent a posse to arrest Noriega, under a US indictment;
Gulf War propaganda presented the war as a mission to dispossess
the bad guy of his ill-gotten gains; in Somalia, US Rangers went
to arrest Mohammed Aideed under a warrant issued by the Security
Council, with horrific results; in Haiti, US forces entered to exercise
police powers, albeit without a particular person to arrest; in
Bosnia and Kosovo, action was conceived as stopping the crimes of
Slobodan Milosevic; and in the wake of the current attack on the
US, military action is conceived of as a posse to hunt down the
terrorists, whether bin Laden or others.
Sometimes, the contemplated military action is literally police
work, that is, arresting someone; sometimes the rhetoric is designed
to assure Western public opinion that their forces are engaged merely
in police actions, as though this was somehow less dangerous and
more legitimate than making war.
But the differences between what police do in maintaining order
and soldiers do in making war, no matter what the euphemism, is
considerable. First, there is the difference in firepower. Police
are armed with relatively light weapons, for the simple reason that
maintaining public order cannot rest for very long on firepower
alone but must rest on the legitimacy of that public order and its
police forces. Military firepower, by contrast, exists to destroy
military forces, in which the greater the ability to concentrate
firepower, the better. A city cannot be policed with tanks and mortars.
Second, while the fundamental task of the military is to destroy
forces, the fundamental task of a police force is to stop criminal
behaviour and apprehend (literally to catch) and arrest (literally
to stop) perpetrators.
Only that level of force is permitted to police. The critical moral
difference between police and soldiers is in this area of the permissibility
of collateral damage and injury to the innocent. Police have restricted
firepower principally because of the risks to uninvolved bystanders
and because the person they seek to apprehend may in fact be innocent.
In military operations, however, we accept morally the possibility
of at least some collateral damage, provided that the military necessity
is great enough.
When a war-making operation, conducted by the military, is given
the euphemism of police action, there is a tendency
to overlook collateral damage, because it is naturally assumed that
it has the cleanliness of idealized police arrests, whereas in fact
it may, for example, constitute a full-scale assault on a city.
Conversely, when activities conducted by police are assigned war-making
metaphors, it is a signal that its commanders have relaxed the normally
strict police rules on dealing death and destruction. Confusing
the two can also lead to the mistaken underuse of force in some
circumstances and its overuse in others. In pursuing Noriega, for
example, US forces, acting as what they imagined were police, criminally
shot up a couple of neighbourhoods in Panama City with 50 mm machine
guns, on misleading tips that Noriega was hiding out in the area.
In the Gulf War, the operation failed to destroy the forces that
then massacred the Kurds and the inhabitants of the southern Marshes.
This was a foolish underuse of force. The aftermath of that under-use
of force against purely military targets, however, has led to a
morally dubious overuse of force in sanctions that fundamentally
hurt ordinary Iraqis.
Simultaneous war and police operations against terrorism have another
risk. As Michael Ignatieff is correct to point out, justifications
of war may sweep aside civil liberties, both for ordinary Americans
as well as for those suspected of terrorist connections. Although
politicians of all stripes are being careful now not to demonize,
for example, Arab Americans or followers of Islam as such, such
restraint may not last, or may not make any real difference in how
they are treated by police; moreover, there is already serious and
disturbing talk of domestic security measures such as surveillance
of the Internet or national identity cards that represent a significant
erosion of civil liberties of Americans. These are liberties that,
once lost, are not easily recovered.
The Bush administration is obliged, morally and practically, to
prepare to make war. Police work has simply proved itself insufficient,
premised as it is on wishful thinking, on the dream of the world
as a unitary domestic society under a gradually emerging global
political order. If the administration makes war, it must do so
according to its constitutional pact with its own people and its
own political community. If friends and allies will join it, so
much the better; and if their counsel is good, including arguments
of restraint, it should take it. Yet, however much the United States
might seek to resurrect multilateral coalitions of the past or to
create new ones for the future, it must not allow the present crisis
to hold it hostage to an alien concept of international governance
and overreaching concepts of international law.
In peace or war, alone or not, supported or unsupported, America
will have to abide by its own counsel and go where it must. It is
therefore a time for soldiers to sing The Battle Hymn of the
Republic, rather than for children to sing we shall
live in peace, however much one might wish it otherwise.
The peace of the city of God is not today within our grasp, and
yet the peace of tranquillitas ordinis just might be at least
the promise of enough ordinary peace to rebuild and hold to that
which was destroyed, and say to our children in years to come: yes,
here died many innocent men and women; but behold, look around you,
si monumentum requiris circumspice.
A
Defining Moment in the Parsing of War
Anne-Marie Slaughter article from The Washington Post Company.
COMMENT
& ANALYSIS ASSAULT ON AMERICA: Paying for security with liberty:
Michael Ignatieff argues that vulnerability often tempts strong
nations to take self-destructive measures and and actions that lead
to injustice
Michael
Ignatieff article from the Financial Times.
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