Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
Rodney Allen[*]
Terrorist crimes and the question of objective truth.
Immediately following the attacks of the suicide pilots on New York and Washington on September 11, 2002, US President George W Bush declared war on an abstract noun — terrorism. This war, he said, would be long, arduous and many-fronted. Military action came fairly quickly, directed at one of the world’s poorer and more disabled nations, Afghanistan, where the ruling Taliban had been harbouring Osama bin Laden and the node of his Al-Qaeda terrorist network believed to have been responsible for planning and executing the September 11 atrocities. But at the same time as George W Bush was declaring and waging war he was also declaring terrorism to be a crime, and speaking of ‘bringing the perpetrators to justice’. True, his conception of justice for anti-American terrorists is somewhat primitively militaristic; it amounts either to killing them in the Afghan mountains, or at best to trying and convicting them in special military tribunals where many of the basic protections of the criminal law would not apply. Still, he was anxious to portray the Al-Qaeda terrorists not just as enemies waging war on the American state, but as criminals. America is at war, its government maintains, not just with enemies but with war criminals.
It is worth reflecting that the bombing and shooting war in Afghanistan only made the modicum of moral sense it did as a response to the September 11 attacks because the Al-Qaeda bases there represented a standing threat to American security and were sheltered by the Taliban government, a tyrannical regime in its own right. If Al-Qaeda had been entirely based in the interstices of Western societies the US government would have had little option but to treat the September 11 assaults as shocking crimes rather than as something calling for a military response, and to follow the road of investigation by police and security authorities and prosecution in the courts. Some influential commentators — Geoffrey Robertson, for example — thought that the US and its major allies should have followed this course anyway. Although this advice was not taken, the Western democracies participating in the American-led ‘coalition against terror’, including Australia, all publicly condemned terrorism qua terrorism as a specific and serious type of crime that calls for harsh punishment under law. They have all enacted or proposed new anti-terrorist legislation, some of which threatens to erode civil liberties and the equal rule of law.[1]
For national governments themselves, treating terrorism as a crime presents another sort of problem — legal ‘blowback’. If terrorism as such is a crime, one with a general definition, then established and powerful nation states can be guilty of it too. They can be guilty of it in the course of self-defence. In prosecuting the present war against terrorism they can be guilty of anti-terrorist terrorism. In fact the American anti-terrorist offensive in Afghanistan did have terrorist characteristics itself. The massive and relentless bombing of Taliban- controlled cities and inhabited valleys killed Afghan civilians fairly directly, by some estimates nearly as many as were killed in the September 11 attack on the World Trade Center. It destroyed the homes and livelihoods of many more, killing some of them indirectly by consequent sickness and starvation. Of course George W Bush and his major partners portray their war on terror as one of good versus evil, of civilisation versus barbarism; they cannot countenance the idea that their own nation states might be involved in anti-terrorist terrorism. More generally, they cannot entertain the idea that their own nation states have recent records of terrorism. From this perspective of Western moral rightfulness terrorism is a relative matter, something defined by US and other Western state interests and concerns. There is no such thing as state terrorism (except on the part of so-called ‘rogue states’). However, from the wider perspective of treating terrorism as a general crime, recent history is replete with state terrorism. The US, in particular, can be seen as having engaged in terrorism, or as having sponsored or supported terrorists, in most parts of the world — in South-East Asia, Africa, Central and South America, and the Middle East.[2] The fear that its functionaries might someday be called to account for crimes under international law explains in large part the official refusal of the US to sign up to the treaty establishing an international criminal court.
Although they pay lip service to the view that terrorism is an objective crime, the Western nations in the US-led ‘coalition against terror’ have in practice adopted a relativist stance towards it. Terrorism exists only in the eye of the official Western beholder; it has no independent reality. This relativism actually jells with the post-modernist and multiculturalist temper of our times. That, too, is relativist in orientation. People under its sway believe, roughly speaking, that most concrete forms of human activity are largely social and cultural constructs, and have their own legitimacy and justification within particular traditions and perspectives. Judgments can only be made from within particular perspectives; there is no independent and objective basis for them. So terrorists only exist in the eyes of beholders; what is terrorism from one perspective is holy war from another, or legitimate self-defence from yet another. And, it has to be admitted, relativism about terrorism in particular has some credibility. It has long been a commonplace that one person’s terrorist is another person’s freedom fighter, or freedom defender. Most of us have political or military heroes (Nelson Mandela is one of mine) who others have regarded as terrorists. Virtually all the world’s capitals contain statues of national heroes who can from other standpoints be seen as terrorists. One fairly recent sculptural commemoration of this sort was the erection in London of a statue of Arthur ‘Bomber’ Harris, the man directly responsible for the terror bombing of German cities during the closing stages of the second world war.
Reflecting on terrorism, then, inevitably raises these questions. Is there a distinctive objective crime of terrorism? Can the description of an action as terrorist ever be objectively true? Can there be, with respect to an allegation of terrorism, any objective truth of the matter?
Terrorism is, I believe, a distinctively modern type of war crime — or more broadly, a crime of military or political conflict. Of course, terror is old, as old as human history. Since political societies were first established tyrants and conquerors have killed and tortured some people the better to frighten and intimidate many more. Terrorism, however, only came to take its distinctive modern shape with the development during the 20th century of military technologies that brought civilians into the forefront of war. The First World War was still one in which soldiers mainly slaughtered each other. By the time of the Second World War the contending nations had at their disposal aircraft capable of directly bombing each other’s cities. They made use of this capacity. In the early stages of the war the Germans tried to demoralise the British by bombing their major cities, directly killing civilians, and when the tide of war turned, Britain deliberately mounted a campaign of ‘terror bombing’ against German cities. The war in the Pacific incorporated the intensive fire-bombing of Tokyo, and ended with the dropping of atomic bombs on Hiroshima and Nagasaki, killing 130,000 people with two bombs, including babies in maternity hospitals and children in schools.
In the following decades both the US and the Soviet Union developed and deployed nuclear weapons capable of annihilating each other. At the core of the Cold War confrontation between these two superpowers lay the nuclear missile deadlock, aptly named the ‘balance of terror’ (and also, appropriately, MAD, for Mutually Assured Destruction). The arrays of nuclear weapons were in effect aimed at the civilian populations of the superpowers and their allies, for it was impossible to use them in any way that discriminated between military personnel and everyone else. Nuclear weapons were, and still are, essentially weapons of indiscriminate slaughter — in other words, terrorist weapons. Although the Cold War has passed into history, and each of the major nuclear powers now professes an anti-terrorist posture, not one has completely retired its nuclear armaments from active service.
These courses of action and policies moulded the conception of terrorism we carry into the 21st century. Although they attracted criticism in their time they were mostly seen, and still are seen by many, as on-balance justified. This just shows, I think, how easy it is to find terrorist methods acceptable when they are used by our own side, our own states, in our own putative interest. My main point here, though, is that the development of aerial bombing and, later, nuclear missiles, gave specific shape to the contemporary conception of terrorism. However biased we may be in applying it, our paradigm of terrorism is direct and indiscriminate attacks on, or threat to attack, civilian populations or centres of civilian life, in order to advance some military or political end through the pressure of terror. In its most extreme form, terrorism is the instrumental slaughter of civilians.
While many people may be blind to state terrorism on the part of their own nations, or allied or kin nations, they can certainly recognise it when the victims are members of their own society, or lie within their circle of political or cultural sympathies. So, although some Americans and Australians might find it difficult to recognise terrorism in, say, the Second World War fire-bombing of Tokyo, or the bombing and defoliation offensives during the Vietnam war, practically all of them recognised it in the September 11 attack of the suicide pilots on the World Trade Center. Terrorist crimes, however, are not restricted to the circle of our own sympathies. We need to understand that they can be committed by legitimate nation states, and indeed by our own governments, in defence of our own societies and the values to which we subscribe.
Although modern technology has opened many more avenues of direct attack on civilian populations, the deliberate killing of non-combatants in the course of warfare is not something new. Indeed, it has been expressly condemned within that long tradition of Western moral reflection on warfare, the Just War tradition, which stretches back to the work of St Augustine. Just War theory insists that a just war must not only have a just cause but also be fought by just means. In other words there are moral principles that apply to conduct in war as well as to reasons for resorting to war in the first place. These two aspects of the tradition are called, respectively, ‘jus in bello’ and ‘jus ad bellum’. A central element of the ‘jus in bello’ side of the Just War tradition is the Principle of Discrimination, which is in effect a prohibition of direct attacks on non-combatants. It says that the only legitimate targets in warfare are military ones, soldiers and their military resources, not civilians and their non-military resources. Just War must discriminate between combatants and non-combatants for otherwise it would be murderous. Within the tradition, murder is defined as the killing of the innocent, and the innocent are defined as those not actively engaged in the fighting. Innocence in this context is not the opposite of guilt or moral complicity in an injustice, but rather of active participation in military conflict. According to Just War theory even war criminals and terrorists can be murdered, if for instance they are vengefully killed after being captured and neutralised. On the other hand, conscripted fighters can be legitimately killed so long as they remain active threats. The moral point of the principle of discrimination, or non-combatant immunity, is to prevent warfare descending into mass murder — to confine killing to those actually fighting rather than extending it to those who, whatever their degree of moral responsibility for an injustice might be, are not active lethal threats to anyone. So, then, the objective crime of terrorism is, at its core, instrumental mass murder. It is the slaughter of people engaged in their everyday lives rather than armed military confrontation, as a means to advancing military or political objectives.
When nation states in times of war kill civilians they usually try to excuse the deaths by labelling them ‘collateral damage’. What is meant by this euphemism is that the dead civilians are regrettable but unavoidable by-products of attacks on legitimate military targets. Civilian casualties are OK, governments and their military commanders seem to assume, so long as they can be portrayed as consequences of military operations against military targets. This assumption does derive from a part of the Just War tradition that is known as the principle of double effect, a principle that can be traced back to medieval Catholic moral theorising. In the most general terms the principle of double effect is designed to reconcile the Catholic absolute prohibition of taking innocent life with the sometimes unavoidable sacrifice of innocent life in the course of just or obligatory action. In the case of Just War it is designed to reconcile this absolute prohibition with the real risks to non-combatants sometimes entailed by attacks on military targets. It holds that civilian casualties are morally acceptable if they are the unintended, even if foreseeable, consequences of attacks on military targets. On this basis it can be argued that the bombing of, say, a munitions factory on the outskirts of a city is morally acceptable even if a few stray bombs kill some civilians in nearby houses. The civilians were not the intended targets and their deaths were not means to the destruction of the factory; although some civilian casualties may have been foreseeable they were nevertheless unwanted and unintended consequences of the bombing.
However, the principle of double effect does not excuse nearly as much in the way of harm to civilians as present-day governments and military commanders seem to think it does. Much of the civilian carnage excused as ‘collateral damage’ by the US and other Western nations in the course of recent military engagements, including the one in Afghanistan, has resulted from dropping powerful bombs from high altitudes onto small targets in cities and populated areas, or firing missiles from afar towards targets in the middle of towns and villages. In these sorts of cases military targets and civilians cannot be practically and morally separated; they are together the intended target. The civilian casualties cannot be sensibly seen as separable effects or consequences of attacks intended only for the military targets. Discrimination is not possible, for intention is not a sort of subjective searchlight that can be focused on whatever aspects of an objective target we find morally convenient. So the sustained air and missile strikes by the US and its allies on targets embedded in cities and other populated areas, in Afghanistan and elsewhere, have amounted to state terrorism. Of course, Western military commanders now claim that they possess weapons so smart and accurate that they can surgically destroy military targets wherever they are, without harming nearby civilians. Evidence gathered by war correspondents on the ground, however, belies this. Not even the US yet possesses missiles smart enough to discriminate from afar between, say, Taliban offices and ordinary houses in the middle of Kabul or Kandahar.
The intricacies of double effect aside, the core crime of terrorism is, I’ve said, the instrumental massacre of civilians. More generally, the crime consists in any politically or militarily instrumental harming of civilians in the course of conflict (the destruction of social resources or civic property, for instance). Terrorists treat the lives and resources of innocent people as expendable means to political and military ends. It makes no difference to the evil of any particular terrorist atrocity whether it is carried out by or on behalf of a legitimate nation state, or by some other organisation or an individual. It does make some moral difference, however, whether a terrorist attack is primarily and essentially directed at civilians as such. The American bombing in Afghanistan was targeted on military objectives and limited by those objectives, however much it was also careless of civilian life and destructive of its social and material supports. Civilians were not as such primary and essential targets. From the US perspective civilian casualties were not necessary; it would not have mattered (indeed, it would have been better) if the bombing had killed no civilians but only Taliban and Al-Qaeda fighters. By contrast, over Dresden in 1944 and Hiroshima in 1945, and in New York on September 11, 2001, civilians were the sole and essential targets of terrorist assault. Civilian deaths were both essential immediate aims and means to further ends. Terrorist crimes of this essential nature are the more heinous kind. While the recent record of American bombings of cities (Kabul, Baghdad, Belgrade) has had to an extent a terrorist character, it has been the terrorism of excessive or misplaced military action rather than of unadulterated instrumental mass murder.
The September 11 attacks were certainly terrorist crimes of the worse sort. This identification is not vitiated, nor can the crimes be excused, by whatever criminality can be laid at the door of the American state. The attacks involved a sort of double instrumentalisation of innocent human life. The civilian passengers in the hijacked planes were used as parts of flying bombs, and both they and the people killed on the ground were treated as means to such cloudy aims as demonstrating the vulnerability of America the Oppressive Hyperpower, and sparking a Holy War against Western and especially American dominance of the Islamic world. Indeed, judging from the public rants of Osama bin Laden himself, one of the aims was simply to kill as many Americans as possible. Seen in this way, the atrocities verged on another type of crime specifically recognised in international law — genocidal crime, or killing people just because they have a certain supposedly tainted national ethnic, religious or cultural identity.
Terrorist acts typically have purposes beyond just killing certain sorts of people (the demoralisation and defeat of an enemy society in wartime, the return of conquered land, ending colonial rule, and so on). Genocidal crimes, however, aim at wiping out people just because of who they are. The worst genocidal crimes aim at eliminating a whole category of people deemed to be deformed humans and therefore unfit to live anywhere on the face of the earth. The holocaust is at the nadir of 20th century evil precisely because the Nazis pursued the ‘industrial’ extermination of European Jewry as though they, the Jews as such, were vermin in human form. Some other genocidal crimes, however, have been less wholesale in scope and intent; they have aimed at ridding particular lands of certain kinds of people rather than completely eliminating people of these kinds. The perpetrators of what we nowadays call ethnic cleansing have slaughtered people they have deemed somehow illegitimate or unfit inhabitants of certain lands and societies. The massacres in the mid-1990s of Bosnian Muslims and Croats by Serbs were genocidal crimes of this sort. But because ethnic cleansing atrocities are carried out both to kill people of a certain kind and to drive them away they have both genocidal and terrorist characteristics.
After September 11 we have heard a lot from George W. Bush and other Western leaders about good versus evil, and about how terrorism is now the major threat confronting the entire international community of peaceful nations. However, the worst crimes of the last 100 years, both in magnitude and malevolence, have been primarily genocidal rather than specifically terrorist. Some of these have occurred in the last decade. In a recent book on genocide Samantha Power has detailed six 20th century cases — the massacre of 800,000 Armenians by the Turks in 1915; the Nazi extermination program, in which 6 million Jews were slaughtered; the Khmer Rouge murder of close to 2 million Cambodians in the 1970s; the killing of over 100,000 Kurds in northern Iraq by Saddam Hussein’s forces in the 1980s; the ethnic cleansing war in Bosnia that killed 200,000 Bosnians overall, and culminated in the 1995 massacre of 7000 Muslims by a Serbian force at Srebrenica; and the 1994 Rwanda genocide, in which the then-dominant Hutu’s slaughtered 800,000 Tutsis in 100 days.[3] Most of these genocidal crimes were allowed to run their courses unchecked by any effective intervention on the part of the advanced Western nations, including crucially the United States. During the most recent one, the Rwanda genocide, the Western nations watched from the sidelines as mass slaughter unfolded.[4] The Western democracies did finally intervene against further Serbian atrocities in Kosovo in 1999, but as yet the world has no effective standing mechanism for safeguarding the basic human rights of people everywhere from serious onslaught. If recent history is any guide, people in unstable and relatively impoverished parts of the world still run the risk of unchecked murderous and possibly genocidal attack by their own states, or nearby ones, or resulting from social meltdown.
The present pre-occupation with defeating terrorism that threatens Western and especially American interests and concerns is too narrow to capture within its sights the whole extent of the evil that characterises genocidal and terrorist atrocities alike — mass murder, the direct and essential slaughter of innocent civilians. It has actually diverted attention and resources away from devising effective international measures for dealing with extreme attacks on that most basic of human rights, the right to life, wherever such attacks occur, and even when they are carried out by states against their own people. What is needed but tends to get lost amidst the bombs and missile-rattling of the war against anti-Western terror are measures such as those recommended in the 2001 Report of the International Commission on Intervention and State Sovereignty (ICISS) — strengthening UN powers of intervention and revising the traditional understanding that states can do whatever they like to their own people. What is needed are some of the measures America currently refuses to support — for instance, the establishment of an international criminal court empowered to prosecute and punish those responsible for genocidal crimes, war crimes and crimes against humanity.
To be on the side of good against evil in the geo-politics of the first decades of the 21st century it will not be sufficient just to be anti-terrorist. Anti-terrorism can still be terrorism. The side of good, furthermore, cannot be identified solely with American or Western interests and concerns. The side of good is that of the universal defence of human rights — in particular, the right of people everywhere to be free from lethal assault in the course of their daily lives. Instead of an American-led ‘coalition against terror’ the Western nations should try to build, under UN auspices, a coalition against genocidal and related crimes — a coalition prepared to take military and other measures in defence of fundamental human rights but one which is also, if it is true to the nature of its task, restrained by the very rights it seeks to protect. That would be, much more truthfully, good against evil.
[*] Rodney Allen is a Visiting Researcher, Department of Philosophy, Flinders University, South Australia.
[1] For instance, the US Congress, in the wake of September 11, passed the ‘USA Patriot Act’, which deprives aliens within US borders of equal protection under the criminal law. It empowers the Attorney General to detain any alien suspected of aiding terrorism for seven days with no charge. If the alien is then charged with any even wholly unrelated crime, and the Attorney General believes that releasing him will threaten national security, then the alien can be detained for six months, and for further six month periods indefinitely.
[2] The person who has most tirelessly documented US complicity in terrorism and war crimes during the late 20th century is Noam Chomsky. See, especially, his Deterring Democracy, updated edition, Hill and Wang, 1992.
[3] Power, S., ‘A Problem from Hell’: America and the Age of Genocide, Basic Books, 2002.
[4] Brian Urquhart, a former Undersecretary-General of the UN, in a review of Samantha Power’s book, above, ref 1, (New York Review of Books, 25 April 2002) comments: ‘The UN and its leading members failed to act on specific warnings of the catastrophe to come. When the killings started the Security Council, under US leadership, ignored appeals for reinforcements from General Romeo Dallaire, the Canadian Commander of the tiny UN force in Rwanda, and instead progressively reduced the strength of the force and its capacity to intervene’.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2002/63.html