A House Divided? War, Extradition, and the Atlantic Alliance, PART II
The war on terrorism is not simply the disruption of terrorist plots and the detention of suspects. To be successful when carrying a long-term military engagement, democracies must be imbued with a shared sense of purpose, an agreed-upon strategy and a conviction that their cause is just. As the war on terrorism proceeds apace, long-standing and simmering disputes between the United States and its European allies over questions of extradition and the associated cultural contretemps threaten to derail the campaign against Al-Qaeda and weaken the Atlantic Alliance.
It's War, Stupid
The wartime transfer of "unlawful combatants" creates fundamentally different legal and policy considerations than normal, peacetime extradition cases. Significantly, all of the international legal instruments dealing with death penalty, including Europe's 1983 Protocol, expressly allow for the use of capital punishment in time of war. And, whatever their private misgivings about the proper nomenclature for the September 11 attack, by invoking Article V of the NATO Treaty, at least those European countries that are NATO members chose to treat September 11 as an act of war. Ironically, given this legal context, President Bush's military commission order, which applies during the time of an armed conflict (only to unlawful combatants) and draws upon the laws of war, should have made it easier for the Europeans to deal with American extradition requests. To put it in a nutshell, the American use of military commissions vividly demonstrates that the extradition requests being made are not a criminal justice matter, but rather are part and parcel of fighting a war against international terrorism.
These considerations aside, the state of war dramatically reshapes the death penalty's policy merits. European objections to capital punishment during peacetime--including its lack of "respect for life", failure to account for the possibility of rehabilitation, alleged lack of deterrent effect, and possibility of killing the innocent--have substantially less application during wartime. The innocent victims of terrorism, too, have a "right to life" and the state has an obligation to see that justice is done. At the same time, the possibility of rehabilitating Al-Qaeda members is close to zero. Bin Laden and his co-belligerents are unlikely to accept defeat as did Nazi Germany or Imperial Japan. In Afghanistan, they have frequently indicated a willingness to fight until they physically can no longer fight and, for many of them, this means death. They have declared a war of annihilation against the West, and there is every reason to take them at their word. Indeed, capital punishment may be the only effective response to the threats currently facing the United States and its allies.
The imprisonment of Al-Qaeda members, particularly its leadership, would merely create the incentive for supporters to commit further acts of terror in order to obtain their release. This particular drama has, in fact, already played on the Middle Eastern stage. Israel, for example, has periodically been forced to release hundreds of imprisoned terrorists to free their own intelligence operatives or soldiers. Similar tactics will certainly be used against the United States.
There is also a compelling set of war-related imperatives for the Western countries to suppress unlawful combatancy. As General William Tecumseh Sherman bluntly stated "[y]ou cannot qualify war in harsher terms than I will. War is cruelty, and you cannot refine it." Yet, from the very beginning of organized warfare, strenuous efforts have been made to develop and sustain a body of rules, governing who may use force, when and how. All civilized states, regardless of their position on capital punishment, have an inherent interest in limiting the resort of war to other states, or to those claiming to represent a state and thus acknowledge the limits imposed by the laws of war on their belligerent activities. Private men have no right to make war, and this is one of the oldest and best-established rules of international law. Those who do, and who fail to accept the minimum requirements of lawful belligerency -- a recognized command structure, some identifying "uniform," carrying arms openly and accepting the applicability of the rules of war -- can, and should, be treated harshly. As the 18th Century international law scholar Emmerich de Vattel explained in The Law of Nations: "A nation attacked by such sort of enemies [unlawful combatants] is not under any obligation to observe towards them the rules of wars. . . It may treat them as robbers."
This approach has particular merit in the current circumstances, when for the first time in human history, the very survival of organized states is threatened by terrorist organizations. These groups, aided and abetted by a few rogue regimes, are relentlessly seeking access to weapons of mass destruction. To deal with this threat successfully requires a concerted effort by all democracies, featuring cooperation of the military, law enforcement and intelligence.