After Guantanamo

After Guantanamo

Mini Teaser: Those who would recast the laws of war as international human rights norms are distorting sound precedent, and making big trouble.

by Author(s): Jeremy Rabkin

The United States must not sink to the level of its adversaries, of course. Regardless of whether our restraint is reciprocated, the United States will need to observe some restraints for the sake of its own self-respect. Nobody, for example, suggests that the prisoners at Guantanamo should simply be executed without trial. But in a war against barbarism, it is hard to operate at all times within the gentlemanly code of the Victorian peace conferences that codified the modern law of war. In World War II, when the United States conceived itself at war with total barbarism, American bombers reigned merciless destruction on the cities of Germany and Japan. Michael Walzer argued decades later that this tactic was morally indefensible, and a serious case can be made for his claim--though a strong case can also be made for the answering claim that, in the final analysis, American bombing (including the use of atomic bombs on Japan) hastened the enemy's surrender and so saved lives overall. There is room for leg itimate debate about the restraints that should be observed even in a war with a very dangerous and unrestrained enemy. But imagine how Americans would have reacted during World War II if "neutral" advocates of humanitarian restraint had set themselves up as official arbiters of American war policy. In fact, during the Battle of Britain, the ICRC did offer to monitor civilian damage inflicted by British and German bombers. Churchill rejected any such neutral monitoring role:

It would simply result in a Committee under German influence or fear, reporting at the very best that it was six of one and half-adozen of the other. It is even very likely they would report that we had committed the major breaches. Anyhow, we do not want these people thrusting themselves in, as even if Germany offered to stop the bombing now, we should not consent to it. Bombing of military objectives, increasingly widely interpreted, seems at present our main road home.

Today's ICRC would deny that it is neutral in quite the way it was during the war against Nazi Germany. The ICRC and other advocacy groups were certainly quick to denounce the bombing of the World Trade Center last fall. But they are also eager to maintain credibility with Islamic opinion and with the larger trend of leftist opinion that instinctively sides with "oppressed people" and assumes Western wrongdoing in every conflict with non-Western peoples. So, for example, both Amnesty International and Human Rights Watch insist that "international law" requires that all Palestinians be assured the right to return to the places where their grandparents or great-grandparents may have lived in what is now Israel--a demand that even governments in Europe, which are very sympathetic to Palestinian claims, do not make. The ICRC has for decades allowed Islamic medical services to affiliate as "Red Crescent" rather than "Red Cross" services but refuses to acknowledge Israel's "Red Star of David" service because it lac ks an authorized insignia. Meanwhile, during the recent fighting on the West Bank, the ICRC repeatedly condemned Israel for interfering with Palestinian Red Crescent ambulances--before finally warning the Palestinians not to use these vehicles to sneak weapons and fighters past Israeli checkpoints as they have continually done. Indeed, the ICRC is so receptive to Islamist opinion that last fall a staff officer in Geneva circulated within the organization a report that the attack on the World Trade Center had probably been organized by Israeli intelligence because Jews working at the WTC had stayed home from work on that day.

But the political inclination of individuals in these organizations is not the point. In a war on shadowy terror networks, human rights advocates simply cannot provide even-handed monitoring on both sides. One of the attractions of terror as a strategic weapon is that actual attacks involve very small groups whose support structure can be disguised: states that sponsor or cooperate with these networks can deny their involvement. Human rights groups do not have intelligence services that allow them to shed light on these connections. But they can publicize what they regard as American abuses, because the United States is much more open about most of its operations. Similarly, advocacy groups can hope to affect American opinion, while their influence on dictatorial states like Iraq is effectively nil.

What is true for the monitoring activides of such groups is even more true for the International Criminal Court. Having received strong support from European governments, the 1998 treaty for the Court has now received sufficient ratificadons to take effect. It will start operations in July. The Court will not be able to apprehend any terrorist or anyone else on its own, and terrorists will obviously find it much easier to hide than travelling American (or Israeli) officials. Moreover, the moral onus of an indictment will surely have more political weight--to say the least--against democratic states. After all, would Saddam Hussein be more dismayed by an ICC indictment than by a Security Council condemnation? Would Al-Qaeda leaders care in the least?

Another problem is that the Court can only deal with those proven guilty of precise crimes. What if a leader of a terrorist operation is acquitted of the precise charges before the court because concrete evidence is insufficient for legal standards of proof? Will the terrorist then be released? Will his comrades and followers also be released on the same ground? It will not be easy to disarm terror networks if the detention of their operatives can only be continued when a judge in The Hague finds them guilty of precise crimes. But, like it or not, the ICC is now a fact, and it is likely to reinforce trends in European opinion that complicate American policy. Among other things, the existence of the ICC will strengthen the notion that there really is a higher law of humanity, binding on everyone, and that supposedly unbiased, neutral judges have the moral authority to enforce this law.

Meanwhile, the active role of advocacy groups is also a fact. In western Europe in particular, criticism of American policy from Amnesty International and the ICRC immediately won an attentive hearing. The United States must expect to be criticized. It has reason to cooperate with the ICRC, as it has in Guantanamo, to dispel slanders against actual American policy.

But the United States also needs to remind Europeans that wars cannot always be fought by gentlemanly rules-- not when the enemy disdains all civilized restraint. Europeans may need reminding on this point because, the British excepted, most of them did not do much fighting in the last great war against barbarism--or did their fighting on the side of barbarism--and now regard actual war as something done only by other, less ennobled people. Contemporary Europe has reverted in many ways to the moral complacency characteristic of neutral Holland before each of the world wars.

A PART FROM Britain and Turkey, European states are unlikely to be serious military allies for the United States. But to retain a place in the community of civilized states, European nations still need to remember those very important security obligations that they still can satisfy. Most of those directly involved in the September 11 attacks spent much time planning, consulting and training for their missions in European cities. And European governments remain reluctant to undertake arrests and investigations on the scale required to stop future terrorists from refitting and regrouping in Europe. Their devotion to unilateral and decontextualized standards of human rights has made Europe a haven for those who care least of all for such rights.

Yes, constitutional states must respect certain limits. But as Justice Robert Jackson famously put it, a "constitutional bill of rights" cannot be interpreted as "a suicide pact." He wrote that only a few years after his return from service as chief U.S. prosecutor at the Nuremberg war crimes trials, which perhaps helped to clarify his perspective on what a constitutional state cannot do and what it must do. Yes, the United States owes "a decent respect to the opinions of mankind", as the American Declaration of Independence puts it. But the U.S. government remains responsible to its own people when deciding how to defend them. That is also in the Declaration of Independence.

We should do everything we can to encourage European cooperation in the struggle against terrorism. But we cannot delegate our own decisions about national defense to prosecutors in The Hague or moral monitors in Geneva any more than we would give final word on these matters to the spiritual admonitions of the Pope in Rome. The dispute about our detention policies in Guantanamo is a harbinger of serious emerging differences with our European friends. It is important to clarify the moral and legal grounds of the American position in that dispute. It is unlikely to be the last time in this war when we will have to assert our right to an independent policy.

Jeremy Rabkin teaches international law and American constitutional history in the government department at Cornell University.

Essay Types: Essay