The London Terror Bombs: Were They a Crime or Act of War?

By Anthony Dworkin

On Thursday July 7, four bombs were set off on the London transport system, killing at least 52 people.  The British government made clear that it believed the attacks to have been carried out by extremist Islamic terrorists.  Foreign Secretary Jack Straw said the bombings bore the "hallmarks of an al-Qaeda related attack" and Prime Minister Tony Blair said that "these people act in the name of Islam" but that the overwhelming majority of Muslims would "abhor this act of terrorism every bit as much as we do."

Police stand outside a house in the Beeston district of Leeds, England, July 13, 2005, after a raid carried out in connection with the recent terrorist bombings in London. It is believed that four suicide bombers, including at least three Britons of Pakistani descent, carried out the attacks. (AP Photo/Jon Super)

Despite the suggestion that the bombings were linked to the broad umbrella network of terrorism associated with al-Qaeda, it was notable that the British government referred to the attacks as crimes and not (as the Bush administration has done in response to other terrorist attacks) as acts of war.  "We still don't know who has committed these crimes," Home Secretary Charles Clarke told the House of Commons on the day of the bombings. 

In this use of language, the British government was following the precedent set by Spanish politicians after the Madrid train bombings of March 2004.  It is virtually taken for granted in Europe -- with its long history of facing terrorist attacks -- that there is not a "war" in any meaningful sense between the West and the terror network of al-Qaeda, and that the response to terrorist incidents in European countries is first and foremost a matter of law enforcement.

European and American Approaches

Even Britain, the closest ally of the United States in its wars in both Afghanistan and Iraq, has never publicly endorsed the notion that there is a distinct "war against terror" in the legal sense of an armed conflict between the United States and al-Qaeda.

A striking illustration of the divergent approaches implied by viewing the fight against terrorism within the framework of law enforcement or in a military context was provided by recent reports on the alleged seizure of a terrorist suspect by American intelligence agents in Milan in February 2003.  According to Italian prosecutors, Hassan Mustafa Osama Nasr had been under investigation and surveillance by Italian counterterrorism police for some time when he was forcibly abducted by American agents and handed over to the Egyptian government for interrogation. 

If true, the story would seem perfectly to encapsulate the European inclination to pursue terrorist suspects through the courts and the American approach of treating them as "enemy combatants" who can be detained and interrogated without judicial oversight according to the requirements of military necessity.

How Clear a Distinction Between War and Policing?

However the distinction between law enforcement and war as responses to terrorism may not be as clear-cut and absolute as is sometimes claimed.

For example the British government -- alone among European countries -- has declared that it faces a "public emergency" because of the threat of international terrorism.

When the British government wanted in November 2001 to enact a law allowing it to detain foreign terrorist suspects in cases where they couldn't be returned to their country of origin (the Anti-Terrorism Crime and Security Act of 2001) it was forced to derogate from the provision of the European Convention on Human Rights granting to everyone "liberty and security of person."  Under the terms of the Convention, derogation is only possible "in time of war or other public emergency threatening the life of the nation."  In its statement of derogation, the British government said that the presence of foreign terrorist suspects posed "a threat to the national security of the United Kingdom" and that therefore a public emergency existed.

After a panel of Britain's most senior judges ruled that the Anti-Terrorism, Crime and Security Act was a breach of Britain's human rights obligations, the government replaced it with the Prevention of Terrorism Act 2005.  Under this law, terrorist suspects in the UK can be placed under "control orders" that either confine them to house arrest or place them under curfew, require them to wear electronic tagging devices, and limit their use of mobile phones or the internet.  Any control orders requiring full house arrest will need to be supported by further derogations from the European Convention on Human Rights.

Britain's Aggressive Anti-Terrorist Stance

Moreover, the British government had already before the attacks announced plans to introduce a new law later this year that would give police greater powers to arrest and prosecute those believed to be planning a terrorist attack.  Following the bombings, the Prime Minister announced that the measures would be speeded up if "it becomes clear that there are powers that the police and intelligence agencies need immediately to combat terrorism."

Thus the British government, while rejecting the notion of a war against terrorists, has stated that the terrorist threat may rise to a level that requires the suspension of normal law enforcement methods and guarantees.  And Britain, while favouring the use of the courts to try terrorist suspects wherever possible, has given itself the option of detaining suspects without trial if necessary.

Equally, the United Kingdom argued unequivocally that it was legitimate for the United States and Britain to attack Afghanistan to end the Taliban regime's support for al-Qaeda, and Tony Blair said repeatedly that the possibility that Saddam Hussein might supply unconventional weapons to al-Qaeda was an important reason for going to war against him.  In other words, the British government does not believe there is a war against terrorism per se, but it does believe the terrorist threat is sufficiently grave (or as Blair prefers to phrase it "real and existential") to justify launching attacks on other countries.

The War Against Terror Unravelling?

At the same time, the notion that the Bush administration has unconstrained powers to capture and detain so-called "enemy combatants" is coming under attack from American courts.  Last year the Supreme Court ruled that Yaser Esam Hamdi -- an American citizen alleged to have been fighting with the Taliban in Afghanistan -- could challenge the factual basis for his detention before an independent tribunal.  A number of cases arising from Guantanamo Bay and now making their way through the lower courts are likely to flesh out further the limits to the war powers claimed by the Bush administration in the unconventional context of an anti-terrorist campaign.

The United States may end up with powers far less sweeping than those that would apply in a conventional war (such as the right to hold enemy fighters without judicial oversight until the end of the war).  Simply as a matter of policy, indefinite detention as practiced at Guantanamo may be less sustainable in the long term than trial and conviction of suspected terrorists where possible through the criminal courts.

Between War and Law Enforcement

In the end, it is possible to reject the "war" approach to extremist Islamic terrorism without claiming that law enforcement alone (however important a part it has to play) is enough to defeat the threat faced by Western societies.  The war model seems wrong not because it overstates the threat of al-Qaeda but because it relies on a picture drawn from a very different context: that of inter-state armed conflict fought by organized military forces with a distinct beginning and end of hostilities.

The powers available to warring states under international law only make sense under these particular circumstances.  They are part of an associated package of rights and responsibilities, refined by centuries of military practice, that allows states to settle their differences by force while promoting their mutual interest in limiting the harm caused to wounded soldiers and to civilians.

Twisting the prerogatives of war to apply in a confrontation with an amorphous terrorist group that has no government with which peace can be negotiated, and whose "soldiers" can never be clearly distinguished from civilians, distorts the protective intent of this body of law and turns it into an unbounded charter of executive license.  To hold individuals indefinitely when they deny any hostile intent against your country, and to refuse them the chance to test the evidence against them before an impartial tribunal, seems to offend too deeply against contemporary notions of the rule of law to be acceptable either in war or peace.

But rejecting the notion of a war against terrorism does not mean relying on the police and the criminal courts alone.  The British have gone to war against the Taliban, deposed Saddam Hussein and detained suspects without trial under "public emergency" legislation without any claim to be at war with al-Qaeda.  Whatever you think of these measures (and the last two have been deeply controversial in Britain) the British approach shows that there is considerable scope for an aggressive anti-terrorist strategy that is nevertheless subject to legislative and judicial control -- and that does not claim war powers that effectively mean that the government can do as it pleases whenever national security is invoked.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Related Links:

United Kingdom Prevention of Terrorism Act 2005

European Convention on Human Rights

War or Criminal Law in the War on Terror?

Kenneth Anderson's Law of War and Just War Theory Blog

(This blog by a contributor and friend of the Crimes of War Project has an interesting discussion of the law enforcement vs. war question that reaches a different conclusion from this article.)

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