Freedom fighters, terrorists and lawful combatants. The violent quest for moral certainty and social change
By: dr. Ted A. van Baarda
When introducing a bill in Parliament, the Minister of Justice of a European country faced fiercely critical questions over an unsatisfactory definition in the bill. When asked what the definition actually said, he conceded defeat when he spoke: “With this definition, it’s like when St. Augustine was asked about the definition of time. ‘When I am not asked what time is, I know what it is, but when I am asked, I don’t know.’”
Although the definition under scrutiny did not concern terrorism, it might well have been the case. For in the case of terrorism too, many have a gut feeling what it is, certainly when it is shown on television screens, but it has been remarkably difficult to find a definition that is satisfactory on a world-wide basis. In this paper, I will discuss:
· the difficulties in arriving at an internationally acceptable definition of terrorism;
· the vexed issue of the distinction between freedom fighters and terrorists;
· the so-called ‘justification’ of terrorist acts;
· finally, at the level of legal philosophy I will conclude with some remarks concerning the moral nature of a democratic society as such - something which needs to be defended both militarily and morally. Failure in doing so would put our identity as free nations in peril.
Political violence and criminal violence: blurred distinctions
The difficulties in finding an internationally acceptable definition of terrorism are of a practical as well as ethical and legal nature. Of a practical nature is the fact that there are both differences and similarities between terrorism and guerrilla warfare, while the same can be submitted for the relationship between terrorism and ‘ordinary’ criminality. As a result, it is difficult, if not impossible to juxtapose terrorism unequivocally to either guerrilla warfare or criminal behaviour.
Guerrilla’s frequently use methods of combat which are similar to those of terrorists, such as the use of indiscriminate violence. Both frequently ignore the obligation pertinent under the laws of war to distinguish themselves visibly from the civilian population.
While the motive in ‘ordinary’ crime is frequently that of material gain, personal passions or the wish to even the scores, terrorism is frequently described as quintessentially political. However, the distinction between terrorism and ‘ordinary’ crime can blur. In order to finance their operations terrorist organisations have engaged in ‘ordinary’ criminal activities, such as hostage taking or drugs dealing (Groll Yaari, 1998, 35).
While the criterion of the political motive is not incorrect, it may lead on occasion to arbitrary results. This may be the case when the motive is both material as well as political. Thus one branch of a criminal organisation specialises in acquiring wealth through criminal means in an attempt to sponsor the political, terrorist branch of the same organisation. Furthermore, it may occur that virtually the same act may be classified differently, solely depending on the motive. The murder for instance of the German captains of industry Alfred Herrhausen and Jurgen Ponto in 1978 by the Baader-Meinhof group is regarded as an act of terror. However, the murder of the Dutch captain of industry Gerrit Jan Heijn in the late eighties is seen as an act of common criminality, because of the financial motive. If one does not take the motive into account but simply the act, the murders are indistinguishable.
Ethical and legal complications
Two issues which lie on the borderline between ethics and law, complicate the quest for a definition of terrorism, which is acceptable on a (near) world-wide basis. The two can be distinguished, but are clearly related.
· Who has the authority to define terrorism? In other words: who has legitimate authority over a given society, territory or population? More often than not, the issue of the legitimacy of public authority is one of the key issues that keeps a government and terrorists apart. A case in point is the heated discussion on the distinction between terrorism and a liberation struggle in the context of the wars of independence.
· Should terrorism primarily be defined from the perspective of the penal code (as many governments prefer) or from the perspective of the laws of war (as many terrorist movements prefer).
Implied in the quest for a definition is the issue of ‘the power to define’. The unspoken premise that the agency or body that drafts the definition is acting within its authority. Although this may be correct from the point of view of legal positivism, the group targeted by the definition is likely to call that authority into question. The organisation targeted is likely to perceive the government authorising the drafting of a definition as oppressive, unjust and criminal. Whatever the modalities of the definition, the organisation targeted is likely to dismiss the definition out of hand or declare it inapplicable to itself. The cause is clear: he who succeeds in labelling his opponent as a terrorist, has succeeded in influencing the public at large to see the conflict from his point of view (Hoffman, 1998, 8; Crenshaw, 1995, 11). However, the definition as such says little about the moral standing of the government who drafted it. History shows a number of countries where terrorists have succeeded in overthrowing the government and outlawed terrorism once they had assumed governmental authority themselves.
The inevitable conclusion is that penal definitions of terrorism that emphasise the political motivation of the perpetrator are problematic.
An alternative method for defining terrorism has the laws of war as its starting point. Terrorism is seen as a form of warfare, in lieu of a form of crime (Jenkins, 1986). In the battle between terrorists and government forces, the ius in bello would be applicable.
There are limited advantages to this approach. It may assist in distinguishing an insurrection or a liberation struggle from terrorism, in view of article 1 (4) of Additional Protocol I to the four Geneva Conventions. If in the context of a liberation struggle only members of the security apparatus are targeted but no unsuspecting bystanders, it would not be an act of terror but an act of lawful resistance. Summarised briefly, the controversial article 1 (4) states inter alia that wars against foreign domination, colonialisation or apartheid, are to be regarded as international armed conflicts.
The provision is more of a symbolic rather
than practical nature. Because terrorists rarely respect the ius in bello,
the vast majority of their acts would still remain criminal. A modern
terrorist is unlikely to respect the distinction between combatants and
non-combatants because it hinders him too much with the psychological aspects
of his struggle. Invoking fear is the main weapon with which he attempts to
undermine the resolve of a nation. Unlimited fear is - from his point of view
- the best. The distinction between combatants and non-combatants denies him
one of his options, since the fear among the public that everyone is a
target is his trump card.
The approach of the laws of war has its disadvantages:
Firstly, there is the issue of the threshold of violence which has to be met, before a situation of ‘armed conflict’ can exist which, in turn, would trigger the applicability the laws of war. The laws of war are not applicable to an incidental shooting. Although there is some discussion about the minimum threshold on the applicability of the Geneva Conventions and Protocols, it appears certain that:
· there should be continuous and large-scale hostilities;
· between the regular armed forces and an organised armed group, respectively between such armed groups among each other (ICTY, Tadić case, 1995, §§ 67-70).
Because many acts of terrorism occur in what is widely viewed as peacetime, “… the illegality of such acts has to be established first and foremost by reference to the national law of states; international treaties on terrorism and related matters; and other relevant parts of international law …” (Roberts, 2002, 8).
Secondly and perhaps more importantly, even if the laws of war would be applicable, they would in effect bypass the question whether terrorism is criminal by nature. This effect occurs notwithstanding the distinction between international and non-international armed conflicts. In the case of international armed conflicts, the highly controversial provision of article 1 (4) of Additional Protocol I appears to grant a measure of legitimacy to the insurgents concerned. The mere fact that they have taken up arms would not qualify as a crime - at least under international treaty law. Hence president Reagan advised the US Senate against ratifying Additional Protocol I (Roberts, 2002, 12-13). If on the other hand, the case would be one of a conflict of a non-international nature, common article 3 of the Four Geneva Conventions, and possibly Additional Protocol II would come into effect. Common article 3 states that it applies without prejudice to “… the legal status of the Parties to the conflict”. By remaining silent on the status of the parties to the conflict, common article 3 too bypasses the question whether terrorism is criminal in nature. Governments are likely to perceive this as unacceptable. Wars on terrorism, more often than not, are seen by governments as a mortal battle been the forces of justice and human dignity pitted against the forces of evil and lack of civilisation. Hence, the governments involved are likely to demand that any application of the law will refer in one way or other, to the ethical distinction between ‘good’ and ‘evil’. The bypassing of the issue whether a terrorist is an evil criminal would, in effect, put members of the police and the regular armed forces on a par with any given terrorist organisation. No democratic government up-holding the rule of law can afford such a point of view.
Sadly, the approach that starts from the laws of war will not be satisfactory either in providing with a definition of terrorism that is both sufficiently accurate and acceptable on a world-wide basis.
Although the inadequacy of the laws of war merits further examination, this does not suggest that their application is unimportant. Roberts argues that there can be strong prudential considerations that militate in favour of observing the laws of war. One is clearly of an ethical nature: “in anti-terrorist campaigns in particular, a basis for engaging in military operations is often a perception that there is a definite moral distinction between the types of actions engaged in by terrorists and those engaged in by their adversaries. Observance of the ius in bello can form part of that moral distinction” (Roberts, 2002, 9).
Freedom fighter or terrorist?
The question “freedom fighter or terrorist?” is not a new one. It was already topical during the Second World War - particularly in those countries where there existed active resistance against the enemy occupation. On closer analysis, two main questions can be distinguished:
· Is a population living under enemy occupation is under an obligation to respect the authority established by the Occupying Power?
· If the answer is no: to what extent is that population obliged to respect the laws of war when resisting the occupying forces?
As far as the obligation to respect the authority of the Occupying Power is concerned, Dutch criminal courts, trying war crimes cases in the immediate aftermath of the war, were not insensitive to the argument in favour of a right to resistance of the occupied population. In the well-known case against the general of the German SS Rauter, the (then) highest court of the land on war crimes cases, considered that, from the German viewpoint, “… the resistance in the Netherlands to the occupying Power could be considered unlawful because the irregular fighters in the Netherlands did not fulfil the requirements concerning legal fighting forces as prescribed by the Regulations of Land Warfare, and the accused was therefore justified in acting against the resistance.” The Special Court of Cassation then took a U-turn. It added that “from the Netherlands viewpoint the matter can be considered differently, because the occupying Power only exercises a factual and not a legitimate authority, so that the population of the occupied territory is in general neither ethically nor juridically obliged to obey it as such; it follows from this that resistance to the enemy in the occupied territory can be a permissible weapon.” In his annotation of the ruling, the former Justice of the International Military Tribunal for the Far East, Röling, observed that it deviated from views held in Great Britain and the United States. In the latter, the population is perceived as having the obligation to obey the occupying authority. “One cannot escape the impression, that the national interpretation of international law on this issue is, in part at least, being decided by the consideration whether a given nation has a larger chance to occupy, than to be occupied. In the first instance, one leans toward the duty to obey, in the second instance one does not” (our translation - TvB).
His observation is wise, because the question whether the population living under occupation possesses a right to resistance is one of the contentious issues which was left unresolved at the end of the Hague Peace Conferences of 1899 and 1907. Given the fiercely opposing views between the Occupying Power and the local population, it will be virtually impossible to arrive at a common view on what is just, legitimate or criminal. When the Hague Regulations of Warfare on Land were drafted, the smaller nations opposed the views of the larger nations concerning the right to resistance. In the end the Russian diplomat Martens offered his well-known compromise formula. It contains the phrase “… in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and rule of the principles of the law of nations (…) the laws of humanity, and the dictates of public conscience.” The text has both ethical and legal elements. A slightly modified version of the Martens’ clause remains is a cornerstone of modern international humanitarian law, currently codified in article 1 (2) of Additional Protocol I (1977).
In the Rauter case the Special Court of Cassation observed that a situation existed where the occupying power had exceeded its authority as Occupying Power deliberately, frequently and systematically. One cannot possibly expect of an occupied population to respect the authority of an Occupying Power if that power is unwilling to respect the laws of occupation. During the German occupation of Holland, obedience to the Occupying Power was perceived as unpatriotic and disloyal to HM Queen, living in exile in London. In the eyes of the majority of the Dutch population there hardly existed a conflict of loyalty. Confronted with the choice of loyalty to HM the Queen or obedience to the Occupying Power, the choice was not difficult at the level of principle, albeit that the desire to put that choice into practise was dangerous to the point of suicidal. Throughout Europe resistance movements were supported militarily from London, giving rise to the suspicion that the interpretation of major powers of this issue is not as strict as it appears on paper.
The Geneva Conventions
When the four Geneva Conventions were drafted between 1946-1949, the discussion on the distinction between terrorists and freedom fighters revived. Many countries had just been liberated. It was both politically and morally unthinkable that their partisans, nationalists, maquis and freedom fighters would be viewed as criminals. Revealing is the analysis in a British Manual of Military Law dating back to the nineteen forties: characteristic for the distinction between a combatant and a non-combatant is that it implies that someone has to choose where he stands. Either he is a combatant, or he is a non-combatant. He cannot enjoy the advantages of both categories. More specifically, he cannot legally kill enemy soldiers in his capacity as a combatant, only to act as if he was a peaceful civilian once he is caught (Best, 1997, 127 et. seq.).
The tactic of blending in with the local population until a one has become virtually invisible to the enemy has also been practised with the premeditated aim of inducing a violation of the distinction between combatants and non-combatants. With this hideous goal in mind, a two-fold purpose is served. First, it offers the opportunity to portray, at international press conferences, human rights record of the enemy as questionable in view of the death of “innocent” civilians. Second, it offers the opportunity of strengthening the resolve of one’s own supporters to continue the struggle, given the perceived viciousness of the enemy (Kellogg, 1997; Andreopoulos, 1994, 196; Rappoport, 1989, 16).
A corollary to the distinction between combatants and non-combatants is the distinction between lawful and unlawful combatants. Although the distinction does not formally exist in law, in is in effect pertinent in view of the definition of combatants in art. 4A of the Third Geneva Convention. A combatant meets the following criteria:
a) that of being commanded by a person responsible for his subordinates;
b) that of having a fixed distinctive sign recognisable at a distance;
c) that of carrying weapons openly;
d) that of conducting their operations in accordance with the laws and customs of war.
According to the leading author of the ICRC Commentary to the Geneva Conventions, Jean Pictet, partizans, freedom fighters, etc., who meet these criteria, are lawful combatants (Pictet, 1960, 44-61). By reasoning a contrario one could argue that individuals who participate in the hostilities without meeting these criteria are unlawful combatants. While commenting on article 5 of the Fourth Geneva Convention, Pictet has observed that persons who take part in hostilities while not belonging to the armed forces, are acting deliberately outside the laws of warfare (Pictet, 1958, 53). Hence, they loose a great deal of the protection of the Geneva Conventions to which they would otherwise be entitled.
During the drafting of the Geneva Conventions a second argument was invoked. The ius in bello should be applied with greater flexibility towards freedom fighters, certainly in the case where a violation of the ius ad bellum has lead to the conclusion that the initial attack was illegal. Although this argument rung a cord with the populations which were recently liberated of German occupation, it had several drawbacks. In its most extreme form, it would result in a total war and the breakdown of international humanitarian law as such. Violations committed by one side, perceived or true, would free the opposing side from respecting international humanitarian law as well. Psychologically and ethically this phenomenon is known as a “moral disengagement factor” (Bandura, 1998). It may recalled however that such a course of action is prohibited. The application of the principle of reciprocity does not apply to inter alia treaties of a humanitarian nature (art. 60 para. 5 Vienna Convention on the Law of Treaties).
The argument in favour of greater flexibility could not be entertained. Firstly, the argument in effect introduces a double standard. The goal of national liberation apparently sanctifies any means of combat, resulting in the total war mentioned. Secondly, proponents of the argument overlook one of the cornerstones of law as such: there exists a principle of equality before the law; the metaphorical goddess of justice is blindfolded. The ius in bello does not deal with the issue that keeps the warring parties apart. It only deals with permissible means of combat, the merits of the bone of contention regardless (Best, 1997, 127 et.seq.; Paust, 1975, 16).
Terrorists often prefer to portray themselves as freedom fighters in an attempt to distinguish themselves from ‘ordinary’ criminals who have to appear before a criminal court. They describe themselves as a ‘soldier’ being a member of an ‘army’. They do not display in accordance with the requirements of the Hague Regulations on Warfare on Land (1899/1907), military insignia. However, once they are taken into custody they frequently demand special treatment or even the status of a Prisoner of War under the Third Geneva Convention. The struggle of the IRA convict Bobby Sands in the Maze prison in the seventies, is an example. Neither can it be surprising that a number of terrorist movements have names which have a militaristic sound: the Red Army Fraction in Germany, the Red Brigade in Italy, the Japanese Red Army, etc. (Crenshaw, 1995, 12). The use of such names creates the erroneous impression that their respective movements have a status that is on a par with the official regular army.
Wars of liberation and Additional Protocol I
During the nineteen-seventies international negotiations led to a norm which can today be found in art. 1 (4) of Additional Protocol I. It states that situations of international armed conflict include struggles “… in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination…”
The paragraph would not have been included in the final text of the Protocol without the strong support of Asian and African nations, overriding objections of Western nations. During the negotiations, the former observed that the Geneva Conventions as well as the Hague Regulations in effect posed rules and limitations on wars between western nations themselves. Wars in their colonies were outside the protective scope of the Regulations because the Regulations only govern international armed conflicts. In the eyes of many Asian and African nations this was a case of double standards. As long as westerners fought each other (in inter-state conflicts), there existed clear rules, but when Westerners fought Asians and Africans (in colonial conflicts), hardly any rule existed. Why is it impossible as a matter of principle, they argued, to apply the legal distinction between combatants and non-combatants to wars of liberation?
The criticism concerning the double standard cannot be rejected out of hand. Many experts have observed that the fundamental concepts on which international law has been developed through the ages, is in fact of European, even Christian origin. What many Asian and African nations saw as legitimate wars of liberation against colonial subjugation, had been labelled ‘criminal’ by the colonial regimes by calling the armed struggle terrorism. Again, the fiercely opposing views on what is just, legitimate of criminal, prevented an agreement on what is terrorism and what is not. The discussion on article 1 (4) of Additional Protocol I illustrates how difficult it is to define terrorism as distinguished from a lawful liberation struggle.
In sum, it is fair to say that terrorism, as method of combat is the whole mark of many liberation movements and that their method of combat is undoubtedly criminal in nature. Liberation movements that do respect the laws of war and use discriminatory violence only are not by definition terrorist, at least under the laws of war. However, the large majority of modern-day terrorist organisations commit their acts of violence outside the context of colonialism, military occupation or struggle against a racist (apartheid) regime. Thus, the complicated issue of distinguishing freedom fighters from terrorists is not applicable to them. They remain murderous criminals by any standard.
The so-called justification of terrorism
Several experts have observed that people ordinarily do not exhibit criminal behaviour unless they have found a self-justification. What would be a criminal act under normal circumstances, becomes a justifiable, even honourable act by redefining the act in question (Hoffman, 1998; Bandura, 1998). An act that would constitute homicide in time of peace can be redefined during time of war as “incurring losses to the enemy”. It has been observed that the most marked shifts in human behaviour take place in the military context. The Dutch anthropologist Köbben (1994,12) is amazed by the human ability to see others as objects that have to be destroyed or damaged, as soon as their surroundings define them as such. The redefining of a person as an enemy combatant turns him into a legitimate military target. The process is apparently no different in the case of a terrorist. He too, seeks a justification for the deeds, which he would consider immoral in circumstances that are more benign. Therefore, it is ideology, not technology, which is the source of terrorism. In sharp contrast however to the regular armed forces, the process of redefining by a terrorist is illegal.
Terrorism rooted in religious fundamentalism has a message of promise as its starting point. A terrorist can come to the conclusion that he obeys a holy command. Confronted with a choice between obeying earthly laws or holy commands, he will choose without hesitation for the latter. Therefore, the morals, rules and laws of the society in which he lives must be replaced. The people, who will follow the holy command and the set of morals emanating therefrom, will apparently become morally better persons. However, Rappoport cautions aptly that “… the road to Paradise runs directly through Hell” (1989, xvi).
The world as a terrorist sees it, has to be saved. If that amounts to the annihilation of large parts of the (morally corrupt) population, to allow a small group of chosen people to survive, then so be it. In the case of supporters of the jihad, Simon and Benjamin suggest that the issue is the re-establishment of a seventh-eighth century Califate, when, according to their interpretation of Islam, a just leader governed an undivided umma (community of believers). It is depicted as a perfect example where a two-fold order -- religious and political -- in those countries where Islam was prevailing. Simon and Benjamin observe that infidels will have to be subjugated or killed in the struggle to re-establish the Califate. To these jihadists the Koran forms the only proper base for governance, and Muslim leaders who do not support this view have to be dealt with as deviants. Because the struggle is deemed as holy, a fatwa is necessary to endow the struggle with legitimacy and a religious context. The supporters of sheikh Umar abd ar-Rahman in Brooklyn were apparently of the opinion that they needed his approval every time “… one did something ‘basically unlawful’, which would bring wrong unless the ‘mission [was] under the flag of God and his messenger’” (Simon and Benjamin, 2000, 67-69). The perceived moral corruption prevailing in the West would make the western civilisation an easy prey.
The view of sheikh Umar abd ar-Rahman serves as an example of the glorification of one’s own culture, while considering the foreign as doubtful or devilish. Remarkable is the desire to return to a source of religious inspiration that was apparently lost in past centuries. The source has to be regained or salvaged at all costs. Only the source is pure, true and morally good, while evolution from that source is virtually synonymous with deviation, dilution and, hence, corruption of its purity (Burggraeve, 1994, 60).
Not only terrorism rooted in religion can contain a promise of mythical proportions. The same can be true for certain cases of politically motivated terrorism. One passionate advocate of the violent overthrow of colonial rule was the Algerian author Frantz Fanon († 1961). Hailed in the Third World as one of the chief ideologists of decolonialisation, despised in the West as a terrorist, Fanon immediately makes clear that his struggle was not only one for territory and political independence, but a moral as well. Fanon mocks the values and civilisation of the West, including the racism he observes within the ranks of the colonial authorities. Harshly he criticises the - in his view - arrogance of the colonial powers when they presume that the colonised peoples do not have an ethic and civilisation of their own. The West declares an indigenous population impervious to ethics, devoid of values, even negating values (Fanon, 1961/2002, p. 44). It is this moral arrogance of the colonial powers, which he finds not only deeply insulting and humiliating, but also a major justification for his cause. Colonialism is violence in its natural state, and it will not yield until confronted by greater violence (Fanon, 1961/2002, p. 61). He consequently rejects the notion of negotiation and compromise, because a compromise will involve the colonial system, thus slowing down its overthrow.
One may observe that, from the perspective of the perceived lack of moral integrity of the Western civilisation, there is occasion for little, if any difference of principle between politically motivated terrorism and religiously motivated terrorism.
Fanon continues to state the key values which are, for colonised peoples worth fighting for: “… la terre qui doit assurer le pain, et, bien sûr, la dignité” (“… the earth which has to guarantee bread, and, of course, dignity” - our translation, TvB; Fanon, 1961/2002, 47). The use of the word dignity merits further attention. The word “dignity” has been echoed by many in Africa. The issue of dignity may give us further insight in the so-called justification of terrorism.
A personal grudge can be a motivation for a terrorist in addition to a political motive. Unfulfilled ambitions, a series of disappointments or a feeling that the government has treated him unfairly, may contribute to his decision to disassociate himself from society and to choose violent means (Bandura, 1999, 204). The personal sense of pain and grievance may dovetail with the higher, more abstract, political argument. In the seventies for instance, the Dutch government invited the then Head of State of Indonesia to visit Holland on a formal state visit. The visit was politically sensitive, since Indonesia was former colony of Holland, formerly known as the Dutch East Indies. The visit was seen by certain members the Moluccan minority in Holland as a personal insult. The president of Indonesia was regarded by them as responsible for the ruthless suppression of the Moluccan population on the South Moluccan Islands which are part of the Indonesian archipelago. Here, a man with blood on his hands was afforded all the honours of a state visit by the former colonial power - a shame that in their view could not be extinguished. Cornelis Thenu was one of the perpetrators of the violent high jacking of a train in the North of Holland. He describes how the feeling of being deeply hurt became a decisive argument which added to their political motivation for their high jacking in the late seventies (Thenu as quoted by Van der Linden, 1999).
The key issue is not only the achievement of a material or political goal, but just as much one of recognition: to be accepted and recognised by a fellow human being as fully equal in dignity and rights. It entails a climate where one is able to walk upright and look a man in the street straight in the eye, without being shamed by an improper sense of inferiority. There remains a measure of uncertainty on the precise description of the concept of dignity (Paust, 1984). However, it cannot be a consideration that one can easily afford to neglect, as the British social philosopher Isaiah Berlin points out. “The lack of freedom about which men or groups complain amounts, as often as not, to the lack of proper recognition. (…) What I may seek to avoid is simply being ignored, or patronised, or despised, or being taken for granted - in short, not being treated as an individual, having my uniqueness insufficiently recognised (…). What oppressed classes of nationalities, as a rule, demand is neither simply unhampered liberty of action for their members, not, above everything, equality of social or economic opportunity, still less assignment of a place in a frictionless, organic state devised by a rational lawgiver. What they want, as often as not, is simply recognition (of their class or nation, or colour or race) as an independent source of human activity, as an entity with a will of its own, intending to act in accordance with it (whether it is good or legitimate, or not), and not to be ruled, educated, guided, with however slight a hand, as being not quite fully human, and therefore not quite fully free” (Berlin, 1969/1979, 155, 156; McDougal, 1980, XVIII).
Max Weber (1864-1920)
At this point, it may be useful to refer briefly to the philosophy of Max Weber. As is known, Weber made a distinction between the “ethic of responsibility” (in German: Verantwortungsethik) and the “ethic of conviction” (in German: Gesinnungsethik).
Weber defines the ethics of responsibility as the form of ethic which is pertinent to those holding public office, like civil servants and politicians. Characteristic for the ethic of responsibility is that the incumbent is not only responsible for his decisions and actions as such. He is also responsible for the foreseeable, undesirable side-effects of his decisions and actions. The incumbent is consequently obliged to balance his preferred course of action with the foreseeable consequences, in an attempt to minimise the negative side-effects.
The ethic of conviction is of a completely different nature and it is more pertinent to our study. In the ethic of conviction a key issue is the obligation to follow certain specified values. This is to be done without compromise, regardless the question whether the following of those values is feasible. As long as the follower of the ethic of conviction is convinced he is following the proper values, he must do anything to adhere to them, even if this implies the sacrifice of his own life. Strict deontologists will let a clean conscience come above everything else. The consequences of the actions are not the concern of the believer of the ethic of conviction. Weber has aptly pointed out that the ethic of conviction bears the promise of a bright future:
“… zur letzten Gewalt, die dann den Zustand der Vernichtung aller Gewaltsamkeit bringen würde, - die unsere Militärs den Soldaten bei jeder Offensive sagten: es sei die letzte, sie werde den Sieg und dann den Frieden bringen” (“… the last act of violence, which would then bring the situation of the annihilation of all violence -- as our military told our soldiers with each offensive: this will be the last one, this one will bring victory and then peace will prevail” -- Weber, 1919, 59; our translation -TvB).
Weber has correctly observed that the two approaches, the ethic of responsibility and the ethic of conviction are in their rawest form, irreconcilable. He shies away from a choice between the two, preferring a synthesis. He apparently finds it in a moderated version of the ethic of responsibility, which he describes as a combination of personal commitment and professional detachment to avoid errors of judgement (Weber, 1919, 51 and 65).
In our view, this synthesis would seem correct. The ethic of conviction in its rawest form is blind without the ethic of responsibility because it refuses to deal with any consequence. With a slight exaggeration, one could say: it is content without form. The ethic of responsibility on the other hand can, when it is taken to its extreme, lead to undue bureaucracy, pragmatism and opportunism, even when a principled stance is required. With an other slight exaggeration, one could say: it is form or procedure without content. A moderate ethic of responsibility would then appear to be key criterion in distinguishing terrorists from honourable soldiers. While the former are likely to adhere to the ethic of conviction without further hesitation, the latter will fight with conviction while recognising the importance of the value of human dignity and the laws of war that emanate therefrom.
Perhaps it is the whole mark of a society that all of it is in a process of development. Frequently quoted are the words of legal philosopher Roscoe Pound: “Law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change. The social interest in the general security has led men to seek some fixed basis for an absolute ordering of human action whereby a firm and stable order might be assured. But continual changes in the circumstances of social life demand continual new adjustments to the pressure of other social interests as well as to the new modes of endangering security. Thus the legal order must be flexible as well as stable. It must be overhauled continually and refitted continually to the changes in the actual life which it is to govern. If we seek principles, we must seek principles of change no less than principles of stability. Accordingly, the chief problem to which legal thinkers have addressed themselves has been how to reconcile the idea of a fixed body of law, affording no scope for individual wilfulness, with the idea of change and growth making new law ...” (Pound, 1923, 1).
The quest for a balance between change and stability, the quest too for principles of change belong as a matter of course, to the core issues of democratic governance, respect for civil rights and the rule of law. Modern multicultural societies are societies where the sets of values of one individual or community may collide with that of another individual or community. Actions committed by one citizen are likely to be regarded by a fellow citizen as immoral, sinful and perhaps even criminal. Undoubtedly it is the cause for heated discussions on issues such as the burning of the national flag, transports of nuclear waste, abortion, the unrest in the Palestinian territories, etc. On the one hand issues like these – and many others could be mentioned – suggest that the public at large generally demands laws to be just. Laws are, in other words, not to be detached from moral considerations as the legal philosopher Hans Kelsen argued. Rather, laws are expected to contain, to a certain extent at least, moral considerations and hence to serve the cause of justice. On the other hand, the issues mentioned demonstrate that there exists a considerable disagreement as to whether the lawgiver actually succeeds. There is even less agreement on a definition of ‘justice’.
Whenever there are within a society fundamental differences of opinion on what is morally good and fair, there will be colliding opinions of justice. They even may exclude each other. This raises difficult questions: “… should one’s own legal order always have priority, even when passionate minorities see their views being cast aside? How unassailable is the [national] legal order - which is subject to human error - and should minority views, during the process of semi-continuous alteration of that order, be given special leeway? How tolerant should one be toward the intolerance of alternative points of view” (Bletz and Van Delden, 1991, 7; our transl. - TvB)? In other words, can people invoke a so-called ‘higher law’ which can set aside the applicable positive law which was properly adopted by parliament?
Rosenthal argues that it is difficult to decide beforehand which of the colliding, mutually excluding opinions of justice is the superior. That raises a problem which is as annoying as it is intriguing, namely that no one can prescribe for others on which grounds they should accept certain political structures, institutions and authorities as legitimate. No claim to legitimacy can be judged in advance as superior to another. “When one counters that the claim of legitimacy of many has more significance that that of a few or of an individual, one introduces the criterion of numbers, thus confusing legitimacy with power” (Rosenthal, 1991, 13-14; our transl. - TvB).
It is perhaps the tragedy of the legal philosophy that in our modern time people seek a just legal order through the development of law; yet what a just legal order actually is, remains uncertain. It requires a quest for a balance between stability and change, and the quest itself presupposes the acceptance, however reluctantly, of a situation of moral and legal uncertainty, a situation of collective doubtfulness, hopefully to acquire the maturity of a new balance and new insights. As a matter of course, there exists the temptation to lapse into revolutionary one-sidedness. This in turn could cause the ascendancy of a strong leader, a strict hierarchy and a tough collectivist codex of morals. The leader decides what is morally just and what is not. A terrorist does not take the developmental nature of society into account. He seeks the violent overthrow of the legal, social and moral order in utter disregard to the interests of others. Society should change, literally and figuratively, with a shock.
Such extremism denies the quintessentially developmental character of society. Through development, both the legal order and ethical sets of values can and will change. During this process of development, moments will come when it appears that the existing legal order is no longer adequate, or can even become a drag on development. Further development will become possible if the old concepts and structures can be called into question and an opening can be found to seek out new values and new concepts. This may be, and usually is, a painful process. However, pain is inherent to a developmental process.
Considering the many violations which had occurred during the first world war, which also saw the dissolution of the Donau Monarchy, Politis observed: “[T]he phenomenon which so preoccupies international authorities is not so strange as many of them seem to think. It is neither new not peculiar to international law, but is merely an essentially relative and evolutionary manifestation of character common to all branches of law. For law, indeed, is only the image of life (…) As man grows older, his tastes, ideas and physical features are constantly changing. He hardly notices it because the change is daily and in details imperceptible. But let an illness come, or some grave moral crisis: he realises it perfectly; only he imagines that the change has been sudden and that it is cause by the ordeal he has undergone. In reality the ordeal is not the cause of change, but only the opportunity which makes it noticeable” (Politis, 1926, 2 - 3).
A more recent philosophical study on development confirmed this view. “Development is not, then, an aim that our societies are free to adopt or reject; it is their very substance and link between the past, present and future generations. If rightly understood, it is not just one particular social duty amongst others, not even the primary duty: development is the condition of all social life and therefore an inherent requirement of every obligation. Individuals and nations can only be united with each other it they first exist. And, as we have just seen, individual experiences and the existence of human societies are a function of progress, in other words of the expansion of human potentialities and of a corresponding increase of material goods. To reject development as a primary obligation would be to reject the humanisation of man and therefore the possibility of a moral system” (Domenach, 1971, p. 14; ECOSOC, 1979, § 40).
These considerations seem to lead us, to a certain extent at least, to the concept of uncertainty. Though uncertainty is not a moral value as such, it can and does have its influence on political and moral judgements. If a new medical pill could lead to uncertain health hazards for example, it is likely to be prohibited, bearing in mind the safety of the patient. In our modern societies, uncertainties are frequently spoken of in terms of risks. Uncertainty about the nature of risks may lead to serious moral or political controversy. Frequently, risk avoidance will be the preferred strategy. In the example of the new medical pill with its undetermined side effects, its prohibition will be based on the policy of risk avoidance, even if that implies that an uncertain (!) number of patients could have been saved by the new drug. Uncertainty concerning the how, where and when of the next terrorist attack will lead to a massive effort of a society to strengthen its assets to defend itself. This can imply that certain costly assets will never be deployed, simply because the terrorist attack is not coming from that particular direction. Decisions concerning risk and the acceptability of risks are fundamentally moral and political decisions (Kirschenmann, 2001, 10). However, given the developmental nature of society, the total absence of risk, that is absolute certainty cannot exist. One can even doubt whether absolute certainty in a moral sense is desirable. The quest for truthfulness, the search for a fair balance of opinions and interests, will by definition imply that one’s own views will have to be related with those holding opposing views. Whatever the definition of social justice, social justice cannot be realised in solitary confinement. It will always be in need of an honest dialogue, where the participants are prepared to engage in the quest together, in an attempt to adapt the old moral and legal concepts to the needs and the perception of justice of modern times.
In 1938, the President of the District Court of Amsterdam held his farewell address, against the backdrop of the ascendance to power of Hitler in Germany. He warned against the quest for absolute certainty in law and ethics. “I know that it is customary to introduce as much as possible the conviction that the law is beyond doubt. This is surely understandable and within certain constraints, a positive effect emanates from legal certainty. However, it also harbours a great danger: that of intolerance. (…) In certain countries, wars are fought ruthlessly and in others, significant tensions exist. Why those struggles? Why those tensions? A battle is always a battle concerning justice, both in peace and in war. Never is the conviction of each of the warring parties that they are in the right stronger than in time of war; he who does not share this opinion is by necessity a traitor in the eyes of his compatriots. However, tensions also arise through a difference in opinion concerning what is just, and the more dearly the convictions are held, the stronger the tension. He, who feels absolute certainty about what is just, as he sees it, cannot think otherwise and those who hold a different view are inferior, stupid or evil, regardless. Towards these people he may do anything, literally anything, and it is not only permissible, but also obligatory. Absolute certainty concerning justice has annihilated complete populations, religious sects, and social classes. He who has this certainty cannot be tolerant; he may not be it. Everyone who doubts the concept of justice that he believes in with such vigour, has to be an enemy who must be silenced at all cost. Or he ought to recognise, at least realise, that he himself can err and that, even if he doesn’t err, there exists a higher consideration which demands respect for each honestly held view. Certainly, there is cause to warn: thou shalt not be too certain of thy law” (Huysinga, 1938, 475, 476; our translation; emphasis in the original -- TvB).
In conclusion, the war on terrorism is not only a military battle, but a moral one as well. Too often, have terrorists have denounced the culture and democracies of the West as inherently corrupt. Though imperfections do exist, this by no means implies that the value of human dignity or the values underlying human rights and democratic order are ready to be discarded. In stark contrast to totalitarianism in its various forms, democracies allow people to seek new concepts, values and structures. In a democracy, one has the freedom to take part in a process of soul searching. Freedom allows the quintessential developmental nature of society to run its course. Thus, it allows social change including the adaptation of values to take place through peaceful means. If we are to win the war on terrorism, we must be prepared to highlight and develop the moral cornerstones, which hold our nations together. Those fundamental values are, after all, worth fighting for.
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 The author is a staff member of the Bureau for Ethics and the Armed Forces at the Netherlands Defence College in The Hague.
 Special Court of Cassation (Bijzondere Raad van Cassatie), 12 January 1949, NJ 1949, 87 (Rauter case) annotated by B.V.A. Röling, translation of the verdict in: Annual Digest and Reports of Public International Law Cases, vol. 16, 1949, case. no. 193, at pp. 529 - 530 (emphasis added).