Family Feud: The Law in War and Peace

Family Feud: The Law in War and Peace

Mini Teaser: American law treats terrorism like an act of war, not a crime. The fact that Europeans don’t doesn’t make their way better.

by Author(s): David B. Rivkin, Jr.Lee A. Casey

In addition, a number of European countries also have adopted a prolonged period during which terrorism suspects can be held before being brought before a judge or magistrate. Germany permits courts to order the continued indefinite detention of individuals convicted of rape, homicide or manslaughter after a sentence is served if it is determined that the individuals could be dangerous. Similarly, Italy permits preventative detention of up to two years (during preliminary investigation) in serious cases such as terrorism, illegal drugs and arms sales, and in offenses involving the Mafia.

American courts, on the other hand, have permitted preventative detention only as a limited exception to the general rule against pre-trial imprisonment. This rule is buttressed by the Constitution's prohibition of excessive bail (in those cases where bail is properly available) and, especially, its speedy trial requirements. Although the courts have not defined, as a constitutional matter, the precise period of pre-trial delay considered to be impermissible, under the federal Speedy Trial Act, an accused must generally be brought to trial within one hundred days of arrest or service of a summons-although a longer period is very often agreed to by defense counsel so as to have adequate time to prepare. Moreover, again with limited exceptions involving post-incarceration restrictions on sex offenders, involuntary mental health commitments and certain immigration-related processes, the United States does not have administrative detentions.

Finally, European states have had far more experience (and are much more comfortable) with paramilitary police forces, such as France's Gendarmerie Nationale, Italy's Carabinieri or Spain's Guardia Civil. In contrast, the formation and use of paramilitary policing bodies (like the Detroit Police Department's stress unit in the late 1960s and early 1970s) have been highly controversial and, except for some small swat teams, generally unsuccessful. Meanwhile, the federal Posse Comitatus Act prohibits, as a matter of law, the military from participating in most law-enforcement operations.

So the "law-enforcement" counter-terrorism model employed by Europe is emphatically not the civilian court system known in the United States. And, as a result, the question for Americans really is not whether we should rely on the civilian legal system rather than the laws of war as the normative framework for regulating the fight against Al-Qaeda. It is whether, so as to avoid the extraordinary resort to war that makes our European allies so uncomfortable, the American legal system should be fundamentally changed in ways that would more closely approximate the civil-law system. Should we-as the British did in dealing with the IRA threat in the 1970s and 1980s-make fundamental compromises in our legal and constitutional traditions, in essence dispensing with many of the protections afforded by the Bill of Rights? And, the policy merits of this approach aside, it is doubtful whether the U.S. Constitution would permit such expedients as part of the civilian justice system.

The experiment, however, is unnecessary since the laws of war, as recognized by the United States, offer a far less drastic alternative that does not even temporarily alter the nature of our civilian judicial system. American law has always recognized that the rights of civilians and combatants are fundamentally different. The United States has maintained these distinctions even if Europe has not-and this also accounts for its clear preference for a law-enforcement counter-terrorism paradigm.

AS EUROPE honed its criminal justice systems to address terrorism over the past fifty years, its military capacity deteriorated. Defense spending by EU states has generally declined as a portion of real GDP, and these states also have adopted stringent rules governing the application of military force that actually favor the irregular tactics used by Al-Qaeda and its allies. Both phenomena are supported by increasingly hostile attitudes towards armed conflict as an answer to virtually any problem-including armed aggression by others.

Even if Europe were to change its defense posture in the coming decades-say, in response to a decreased U.S. security commitment-modifying the European legal regime governing armed conflict will be far more difficult, if not impossible. This is especially true because this regime has now been institutionalized (by, among other things, the creation of the International Criminal Court to which all EU states are subject), to an extent that would make serious reform, except in the most catastrophic of circumstances, a Herculean task.

The most important impediment to change is Europe's general acceptance of Protocol I Additional to the 1949 Geneva Conventions, as well as application of various EU human-rights treaties to military operations, and its prevailing interpretation of international law to permit only two legal statuses under the law of armed conflict-combatants, who are entitled to prisoner-of-war (POW) status on capture or surrender, and civilians, who must be treated as criminal defendants if caught in a hostile act. Protocol I effectively eliminates a traditional third category, the "unlawful" or "unprivileged" combatant.

Under the Geneva Conventions, lawful belligerents or combatants are honorable soldiers associated with a sovereign state-private individuals or groups have no legal right to use force as a means of achieving their goals. All lawful combatants also meet four minimum criteria: They must be affiliated with a group that has a recognizable command structure, wear uniforms, carry their arms openly and conduct their operations in accordance with the laws and customs of war-including and especially the injunction against targeting civilians for attack or operating out of civilian areas. As noted in the British Military Manual used during both world wars, "It is taken for granted that all members of the army as a matter of course will comply with the four conditions; should they, however, fail in this respect they are liable to lose their special privileges of armed forces."[1] Upon capture, lawful combatants are accorded POW status, carrying with it both numerous benefits and connotation of honor.

By contrast, those who engage in hostilities, but do not meet these criteria, are properly classified as unprivileged combatants under traditional international law. They enjoy neither the rights granted to civilian criminal defendants nor receive the very important privileges of POWs. Application of Protocol I to captured jihadists and other unlawful combatants changes this rule, requiring that they be treated effectively as POWs, including communication rights through the International Committee of the Red Cross and a highly restrictive standard regarding interrogations.

In addition, Protocol I provides numerous other advantages for unlawful combatants and has been used to justify increasing demands (especially by humanitarian and human-rights NGOs) that regular forces adopt tactical practices in the field designed with what amounts to a zero tolerance of "collateral damage"-i.e., unintentional injuries to civilians and civilian property. Thus, although the traditional laws of war forbid deliberate attacks on civilians and require the likely benefit of military operations to be proportionate to any likely unintentional damage to civilian objects, Protocol I is said to require that all military operations be carried out so as to minimize damage to civilians or civilian objects.

Terrorists, of course, purposefully hide among the civilian population, making it virtually impossible for a Protocol I-compliant state to defeat them decisively without garnering claims that it has committed "war crimes." Indeed, at a minimum, the treaty deprives regular state forces of advantages they may have from greater potential firepower, while advantaging irregulars by effectively permitting them to use the civilian population as a shield without any perceptible legal cost. Israel's ineffectual 2006 offensive against Hizballah is a textbook example of how following Protocol I-type rules substantially evens the odds between regular forces and irregulars. Protocol I gives terrorists the best of both worlds-which is why the United States rejected it during Ronald Reagan's presidency.

The Great Divorce

IN REAGAN'S day, of course, this divergence between the United States and its European allies over the law of armed conflict was a largely theoretical problem, but no longer.[2] In a post-September 11 world, effective and genuine joint operations between the United States and many of its NATO partners have become impossible. Thus, although NATO is now "engaged" in Afghanistan, American forces continue to bear the brunt of actual fighting. The German contingent avoids contact with "armed elements" in Afghanistan, and Dutch commanders have made clear that they would go to extraordinary lengths to ensure that their troops were not killed in combat. Among the primary allied objections have been that their troops are not trained for counter-terrorism operations and the U.S. position with respect to prisoners.

The disputes over classification and treatment of captives has also adversely affected U.S. cooperation even with those NATO forces that are able and willing to fight, notably the British Army. (Canadian and French forces also participate in combat and combat-support operations in Afghanistan.) As a senior British officer explained to one of the authors, British forces do not willingly transfer captured Al-Qaeda or Taliban prisoners to the United States, lest they be later accused of facilitating "unlawful" treatment, and these same forces live in fear of capturing a senior leader like Bin Laden, lest they be seen as protecting him from American custody.

At the same time, European elites, activists and governments have undertaken a determined campaign to delegitimize America's resort to the traditional laws-of-war paradigm in the hope of forcing a change. This effort has manifested itself in a number of different ways. Individual European political leaders-including those ostensibly supportive of the United States, like Germany's Angela Merkel-and the EU have persistently condemned American detainee policies, and have demanded closure of the Guantanamo Bay facilities. Even British Prime Minister Tony Blair, who has paid a heavy political price for his indefatigable commitment to fighting global terror and jihadi violence, has labeled Guantanamo Bay (and the policy it represents) an "anomaly." The British government, in the form of Attorney General Goldsmith, has questioned the legality of "indefinitely" detaining enemy combatants and its official position is that Guantanamo Bay is "unacceptable."

Essay Types: Essay