Justice and the Enemy Read online

  Jackson believed that Nuremberg had tackled the nineteenth-century concept that state sovereignty permitted any nation to declare war at any time, for any purpose and finally laid to rest “the vicious assumptions that all war must be regarded as legal and just, and that while the law imposes personal responsibility for starting a street riot, it imposes none for inciting and launching a world war.” 2

  Nuremberg’s value to the world lay less in how faithfully it interpreted the past than in how accurately it forecast the future. “It is possible that that strife and suspicion will lead to new aggressions and that the nations are not yet ready to receive and abide by the Nuremberg law.” But he was confident at least that at Nuremberg, “in place of what might have been mere acts of vengeance we wrote a civilized legal precedent and one that will lie close to the foundations of that body of international law that will prevail when the world becomes sufficiently civilized.”

  An important part of the attempt to make the postwar world less savage was the rewriting of the Geneva Conventions that same year. The inspiring history of the Geneva Conventions is well known. They took form after the publication in 1862 by Henri Dunant of A Memory of Solferino, in which he wrote of the horrors he had witnessed at that battle. To alleviate them, he proposed the creation of neutral relief groups to provide humanitarian aid in time of war. So the Red Cross was born and the first Geneva Convention on protecting wounded and sick soldiers on land in time of war was passed in 1864. The second Convention, enacted in 1907, extended those protections to those who needed it on the sea. The third Convention, guaranteeing decent treatment for prisoners of war, was concluded in 1929.

  In 1949, all three Conventions were updated and a fourth Convention was created. The basic intention was to protect innocent civilians by deterring violations of the laws of war. To that end, the Convention also offered protection to combatants who followed the laws of war.

  The fourth Convention imposed obligations on occupying powers vis-à-vis civilian populations; it outlawed torture, collective punishment, and the resettlement by an occupying power of its own civilians on territory under its military control. Common Article 3, common to all four Conventions, was especially important because it covered, for the first time, non-international armed conflicts, including civil wars, internal armed conflicts that spill into other states, or internal conflicts in which third states or a multinational force intervenes. It established fundamental rules from which no derogation was to be permitted and has been described as, in effect, a mini-Convention within the Conventions.

  Among its requirements was humane treatment for all persons in enemy hands, specifically prohibiting murder, mutilation, torture, cruel, humiliating and degrading treatment, the taking of hostages, and unfair trial. It required that the wounded, sick, and shipwrecked be cared for. It granted the International Committee of the Red Cross the right to offer its services to the parties of the conflict. It called on all parties to the conflict to bring the Conventions into force through special agreements. And it recognized that the application of these rules did not affect the legal status of the parties to the conflict.

  The updated Geneva Conventions came into force in October 1950. One hundred ninety-four states have since ratified them and they claim universal application. But many states throughout the world pay little regard to them. Indeed it is doubtful whether a single captured American soldier has ever been treated according to the Conventions since 1950.

  Once it became clear that Osama bin Laden, resident of Afghanistan and leader of Al Qaeda, was the evil leader and financier behind the attacks on September 11, 2001, the U.S. government immediately demanded that the Taliban rulers of Afghanistan hand him and his colleagues over. When that request was refused, the U.S. launched Operation Enduring Freedom, a swift and successful light footprint assault on the Taliban government and an unsuccessful attempt to capture or kill bin Laden himself. None of this was controversial at the time.

  America’s prompt response to 9/11, including the immediate use of military force against the terrorists and their sponsors, was appropriate. If, as its critics later proposed, the U.S. government had treated the attacks as a criminal offense rather than an act of war, there could never have been such a quick reaction. But it was also evident that existing domestic and international laws were not designed to cope with what was being called a “new kind of war,” involving primarily stateless actors who cared nothing for any rules of war. The 1949 Conventions were part of the international legal system designed after the most destructive war in history; the new United Nations was intended to prevent traditional armed conflicts between states and their uniformed armed forces or civil wars. The postwar structures have helped avoid such total war as developed after 1939. But today the threats to peace are rarely such as Hitler posed—an aggressive nation-state greedy for conquest. The threats today are more often from failed states (Afghanistan, Somalia), rogue nations (Iran, North Korea), global terrorism (Al Qaeda and its associates in the Arabian Peninsula and in the Mahgreb), and the proliferation of weapons of mass destruction. Postwar rules do not always match the realities of present-day conflicts.

  Until 9/11 the United States had reacted relatively cautiously and sporadically to terrorist attacks abroad; it had taken a primarily law-enforcement approach, however shocking these assaults had been. Such attacks had become an increasing threat through the 1970s and 1980s and they showed the limits of America’s effective jurisdiction. For example, on March 1, 1973, a reception at the Saudi embassy in Khartoum was stormed by eight Black September terrorists who took hostage Ambassador Cleo A. Noel Jr.; his deputy, George Curtis Moore; a Belgian diplomat, Guy Eid; and two others. The U.S. government refused to negotiate and the terrorists killed Noel, Moore, and Eid. Their demands for an escape plane were rejected and they eventually released the remaining hostages and surrendered to the Sudanese authorities.

  A court of inquiry sentenced the terrorists to life imprisonment, but these sentences were reduced to seven years and they were handed over to the custody of the Palestine Liberation Organization—which sent them to Egypt. Three of them disappeared from Egyptian custody and were never recaptured. The remaining men served out their sentences. The United States also tried to prosecute Yasser Arafat, the P.L.O. leader, in the United States for his role in the murders, but concluded that it lacked the legal jurisdiction to do so.

  President Reagan was determined to extend America’s reach and enable it to pursue terrorists more effectively by judicial means. In October 1984 Congress passed legislation that gave U.S. courts jurisdiction over certain terrorist acts committed outside the United States. This had an important effect: from now on the administration was able to demand, often forcefully, that governments either prosecute or turn over to the U.S. any person suspected of carrying out attacks on Americans within their jurisdiction.

  The first terrorist incident involving the new policy occurred in June 1985 when TWA Flight 847 was hijacked and flown to Lebanon by Hezbollah terrorists; they brutally beat and murdered one young man, Robert Stethem, because he was a U.S. Navy diver. The hijackers got away from the scene of the crime but the U.S. charged all four of them. One was called Mohammed Ali Hamadi and in January 1987 he was arrested for another offense at Frankfurt airport. According to Victoria Toensing, then a U.S. Justice Department lawyer in the Terrorism Unit, the German authorities had an “Oh damn” moment when they realized they had detained one of Stethem’s murderers. 3 Fearing Islamist reprisals, they were not eager to accede to U.S. demands for his extradition. The first excuse was Germany’s policy not to extradite suspects whose crime might carry a death penalty sentence, common in the U.S. but increasingly eschewed in Europe. Even when the U.S. agreed not to call for the ultimate sentence for Hamadi, Germany refused his extradition. Instead, under fierce U.S. pressure, he was eventually tried in Germany. He was convicted and sentenced to life—but the German government released him in 2005 and allowed him to disappear back into the Middle
East. 4

  As a result of the Reagan–era legislation, the United States was able to pressure other countries—Pakistan, for example—either to prosecute terrorists on their soil or to hand them over to the U.S. for trial. And so, because the U.S. could and would now demand extradition or prosecution, terrorists knew that many countries would hold them accountable even for crimes committed outside their jurisdictions.

  The law enforcement paradigm was never absolute before 9/11; for example, in 1986, President Reagan used warplanes to bomb Colonel Gaddafi in revenge for the Libyan attack on a Berlin nightclub frequented by U.S. soldiers. Unfortunately for his thousands of future victims at home and abroad, the Colonel survived the raid. He was able to continue promoting murderous civil wars in Africa as well as terrorism elsewhere for years to come.

  The continuing difficulties of bringing terrorists to justice were highlighted by the Lockerbie murders. In December 1988 Pan Am Flight 103 exploded as it flew over Lockerbie, Scotland, en route from London to New York. One hundred eighty-nine of the two hundred fifty-nine victims on the plane were Americans. The Reagan administration was only weeks from leaving office and feared that bringing those responsible to justice would be a protracted, perhaps even futile process. It was far worse than anyone expected.

  After long investigations, Libya was identified as the culprit and finally, following complex diplomatic and judicial negotiations, two Libyan men were accused and were detained in Libya in 1991. Although the aim of the attack had been to kill as many Americans as possible, the Libyan government was able to insist that their trial take place in the Netherlands, a country that was unconnected to the offense. The court heard the case under Scottish law, for it was in Scottish skies that the plane exploded; eleven Scots on the ground were also killed. The trial did not end until early 2001, when one of the defendants was found not guilty and released; the other, Abdul Basset Ali al-Megrahi, was convicted and given a life sentence, which required him to serve at least twenty-seven years in Scotland. However, al-Megrahi developed prostate cancer, and in 2009, under immense pressure from Libya, the Scottish government announced that because he had only three months to live, he would be released on compassionate grounds. One of Colonel Gaddafi’s sons, Seif al-Islam al-Gaddafi (who had recently been courted by some of Europe’s leading bankers and had filed his dissertation at the London School of Economics in 2007) came on a presidential plane to fly him home to Libya, where he was welcomed as a triumphant hero. Almost two years later, in early 2011, when a popular revolt began against the Gaddafi regime, al-Megrahi was still alive. This shocking penultimate act in the drama caused outrage. Despite financial compensation paid by the Libyan government, justice was not done to the victims of Lockerbie.

  After 9/11, law enforcement was still used against terrorists in the United States, but the emphasis shifted to military responses in the war which Al Qaeda had declared on the U.S. A legal framework for this change was provided by John Yoo, the deputy assistant attorney general in the Justice Department’s Office of Legal Counsel. He argued that “the scope and the intensity of the destruction is one that in the past had only rested within the power of a nation-state, and should qualify the attacks as an act of war.” 5 The war paradigm certainly suited both the national and international shock over the attacks on September 11.

  Perhaps as important was the public definition of this new war. What could one call it? Not wishing to use the word Islam in its identification of the enemy, the White House created a new concept and declared a “War on Terror,” an imperfect description that would lead to both confusion and derision even among allies of the United States. As Benjamin Wittes observes in his closely argued book, The Law and the Long War, “Just as the word ‘war’ doesn’t quite describe the War on Terror intellectually or in practical terms, it doesn’t quite work legally either—at least not if the goal is a legal architecture that grants the president the powers he needs yet also generates the sort of accountability for the use of those powers that might sustain them with long-term public confidence.”

  Even more complicated than naming the type of war was defining the legal status of the enemy. At one level, they were no more than a motley gang of murderers—their ideological motive was irrelevant in terms of law. Yet Al Qaeda was also an international organization that had, long before 9/11, carried out a sustained, worldwide campaign against the United States. The fact that it was a non-state actor did not make it any less belligerent than a sovereign state. And the fact that its members refused to heed the laws of war made them, in one sense, more dangerous than a conventional state enemy, by virtue of their unpredictability. As a result, the Bush administration concluded that members of Al Qaeda and its affiliates should be treated as “unlawful combatants.”

  This is a long-accepted term under the laws of war but unfortunately its meaning is now contested, particularly between the U.S. and Europe. The United States considers that an unlawful combatant can be targeted and detained but is not entitled to the privileges of a prisoner of war under the Third Geneva Convention—neither the benefits in captivity nor the combat immunity that prohibits prosecution for anything other than war crimes. By contrast European states consider that the capturing power must bring any person to trial if it denies them P.O.W. treatment.

  Critics of the Bush White House argued that its rationale was untenable and that the administration’s analysis of Al Qaeda could make the entire world a battlefield. But universal conflict was indeed Al Qaeda’s stated ambition and it would seem strange to argue that the very fact that made the organization Al Qaeda so dangerous—namely its multinational presence and its refusal to follow the laws of war—should constrain the ability of the U.S. to deploy all possible force to defeat it. As far as President Bush—and most Americans—were concerned, the U.S. was now compelled to fight an essential, legitimate, and defensive war against the unprovoked aggression of Al Qaeda and its associates.

  Al Qaeda deployed “unlawful combatants,” but what was the status of Afghanistan’s Taliban? President Bush determined that Geneva did apply to the U.S. conflict with the Taliban; but he decided that Taliban fighters did not follow the rules of war, so they too were unlawful combatants who did not merit P.O.W status. Furthermore, the president declared that Common Article 3 of the Geneva Convention did not apply to either the Taliban or Al Qaeda because it applied only to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties,” a definition that encompassed civil wars or internal conflicts that spill into other states. This was clearly not that.

  Under the 1949 rules, only legal combatants could be legal prisoners of war. To qualify as such a combatant must be (1) commanded by a person responsible for his subordinates, (2) wear a uniform or some other fixed emblem that is recognizable at a distance, (3) carry arms openly, and (4) observe the rules of war.

  A vital legal and moral point that is often ignored by America’s critics is that these protections were put in place to protect not only soldiers, but also civilians. The Conventions offer rights to combatants who follow the rules of war—but not to those who defy them. As Jack Goldsmith, a former senior lawyer in the Bush administration, wrote in his book The Terror Presidency, Geneva means that “if a soldier wears a uniform and complies with the basic laws of war, he would be treated well if caught. But if (as terrorists do) he wears ordinary clothes and hides among civilians, he endangers the innocent and acts treacherously toward rival soldiers, and thus receives no rights under Geneva.” 6 Al Qaeda fighters have never attempted to observe the Geneva Conventions. President Bush later said that they “represent no nation, they defend no territory, and they wear no uniform. They do not mass armies on borders, or flotillas of warships on the high seas. They operate in the shadows of society; they send small teams of operatives to infiltrate free nations; they live quietly among their victims; they conspire in secret; and then they strike without warning.” 7

  And so the White Hou
se argued that to offer P.O.W. protections to Al Qaeda and associated belligerents would be not only legally unsound but also morally dangerous. Stephen Hadley, the former national security adviser, later pointed out, “We defended the Geneva Conventions, and Al Qaeda violated them in every respect. They would hide among civilians to protect themselves and they would kill innocent civilians to achieve their objectives. There could not be anything more inconsistent with international standards for how you conduct a conflict. And, in light of that, we were supposed to treat them like normal P.O.W.s? Why is that a humane, forward-thinking policy?” 8 The U.S. position was clear—to give captured terrorists the same rights as prisoners of war would be to demean and devalue all that had been achieved on behalf of P.O.W.s during the twentieth century.

  That seemed sensible. But there was a problem: it was called Protocol 1 and it made this interpretation far more controversial than it appeared in the immediate aftermath of 9/11.

  In 1977, acceding to pressure from the Soviet bloc and such organizations as the Palestine Liberation Organization (P.L.O.), the United Nations added two new Protocols to the Geneva Conventions. These were supposed to take account of the increase in non-international armed conflicts and wars of national liberation. Protocol I extended the rights of prisoners of war to fighters of many kinds including those, like the P.L.O., who wantonly concealed themselves among civilians. As Jack Goldsmith later pointed out, this effort “dovetailed with the agenda of the nascent human rights movement and the traditional protector of the laws of war, the International Committee of the Red Cross.” 9 They both saw Protocol I as a chance to import more demanding human rights standards into the laws of war. But there was a price for this—it meant a rejection of Geneva’s reciprocity requirements: Protocol I would give basic protections “to even the most vicious and law-defying combatants.” This provided a significant incentive for terrorist groups to ignore the rules of law, as they would “gain strategic and tactical advantages through their own noncompliance of the law and their adversaries observance of it.” 10