Playing by the rules: must state actors constrain themselves
To operating within the law when countering terrorism?
JSCOPE 2006 – Student Category – Playing By The Rules
Many believe that as terrorists act outside the law states should not be bound by it in their response. They think that if the rules are followed states cannot hope to beat the terrorists. However, I will argue that breaking the law is actually counter-productive in the War on Terror for a wide variety of reasons. I will discuss the repercussions arising if state actors operate outside the law and shall explain why the rules should be adhered to. I will divide the aspects into two broad groups: practical reasons, and moral reasons, before summing up to provide a rounded argument. One must consider if breaching the law in response to attacks is ever justified or if doing so undermines our position, reputation and the legitimacy of our reaction by taking away international and domestic sympathy for us as victims.
This topic is relevant as state armies operate throughout the world in response to insurgent attacks and because terrorism is a persistent problem worldwide and the discussion is not limited to western forces overseas but also local forces. For example, in November 2005, a building belonging to the Iraqi Interior Ministry was raided by American forces and found to contain 173 malnourished prisoners who showed signs of torture. Although the Iraqi government played down the scale of abuse the reports were still damaging and undermined faith in the police; serving only to strengthen the insurgency. Such reports will not help the new regime win the hearts and minds of ordinary Muslims, which is essential to defusing the insurgency and reducing the number of recruits filling its ranks.
Insurgents invert the normal conventions of warfare, disguising themselves and hiding amongst civilians; they do not carry arms openly and have no respect for non-combatant immunity. If the soldier on the front line fears that every person he meets may be an insurgent he may slip into the mentality that it is fair to punish everyone. Therefore the state should not sanction indiscriminate attacks on areas where insurgents are known to be hiding amongst civilians because this can translate into the day-to-day actions of our soldiers. To successfully fight non-state actors, the insurgents must be separated from the civilian population. To do so one must win the “hearts and minds” of the civilians so that they will not shelter the insurgents and this cannot be achieved if non-combatants are attacked or hurt by the indiscriminate nature of operations against insurgents.
Though some actions may solve practical problems they may create more problems further down the line. British Lieutenant General Sir Alistair Irwin has said that “Operating outside the law and the moral code may very possibly solve an immediate tactical or even operational problem. But it will surely encourage a tougher resistance, a greater resolve to dish out the same medicine in the opposite direction… The counter-terrorist must be sure that today’s solution is not the seed of tomorrow’s insoluble problem.” For this reason the targeting of leaders of insurgents should only be embarked on after much deliberation. Killing a leader raises the stakes and may lead the enemy to attempt the same and, it is likely to increase short-term violence and possibly increase it in the long-term by making diplomacy with non-state actors harder and by stimulating recruitment for them. Killing leaders will not necessarily reduce operational capabilities; but it can make organizations less restrained and less predictable.
Just cause requires that we accurately target the enemy and that our attacks be both discriminate and proportionate. However, if there is no other way of targeting the enemy military necessity may mean that attacks be permitted under the Doctrine of Double Effect. Dr Martin Cook of the US Army War College in response to 9/11 wrote: “Military necessity permits actions that might otherwise be ethically questionable. For example, if there is simply no practical alternative means of attacking a legitimate target, weapons and tactics that are less than ideal in terms of their discrimination and proportionality may be acceptable.” However, there is still a limit to this: the good that will come of the action must outweigh the negative.
Insurgents exploit through the media mistakes state actors make, including excessive use of force: reports do not have to be true to be damaging, mud sticks. Public opinion is vital in the War on Terror: the problems that arose as a result of the publication of images of prisoners being abused by US military personnel in Abu Ghraib were summarised by Jack Fairweather, a journalist for the Daily Telegraph, a British newspaper: “Anger at the images has boosted support for insurgent groups such as Zarqawi’s Tawhid and Jihad that were previously viewed with horror by most Iraqis. It has also blurred the demarcation between US troops and western civilians, making kidnappings a simpler, acceptable alternative to attacks on armed soldiers. “We see only foreigner now”, said one Iraqi businessman.”
If there are no restrictions made on the force used by state
actors, it will look as if their acts are not of war, but of murder and
massacre. In April 2004 Sheikh Abdul Settar al-Behadili the deputy of Moqtada
al-Sadr and commander of his Mahdi army in
Transparency is important for states engaging with insurgent
groups. They should not hide their actions because to do so and be exposed
later will raise doubts over everything they do. This is why there was such a
big backlash over the use of white phosphorous in
Senator John Kerry pointed out the danger of hiding things from the public when he said “I don’t have any doubt in the American public’s determination to win the War on Terror. But I do know that any administration that tries to keep Congress in the dark damages the cause for which we are fighting.” Kerry’s statement is true on three counts: not only will domestic political support be shaken as the population doubts its government; but international backing will be affected for the same reason, and, thirdly, greater weight will be lent to any future claims made by the insurgents over the actions of the state.
The treatment of prisoners is important as both a propaganda
issue and a strategic issue. If the state treats prisoners humanely and fairly
it is more likely that the insurgents will treat captives of their own in the
same way. If justice imposed by state actors is seen to be unfair and arbitrary,
the insurgents have no reason to be fair themselves. The
Despite the adage that all is fair in love and war, democratic politicians and military leaders must be able to justify their actions after the event. Media coverage means that atrocities will be beamed around the world within hours. It is not true that Inter arma silent leges (in time of war the law is silent).
The Universal Declaration of Human Rights of 1948, article 5 states “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” As insurgents are not signatories to such Declarations and do not respect their contents, many feel that their human rights should not be respected. However, we are bound to follow the tenets of the treaties, as to make exceptions risks opening the floodgates for further abuses. John McCain a Republican Senator who was taken prisoner and tortured in Vietnam has advocated a policy banning all inhumane treatment of captives and said that American prisoners like himself took "great strength from the belief that we were different from our enemies... that we, if the roles were reversed, would not disgrace ourselves by committing or approving such mistreatment of them".
If we decide that humanitarian law does not apply to the fight against terror because the Conventions of which we are signatories were drafted half a century ago for a different situation, we risk spiralling deeper until we think it is acceptable to treat enemies however we want. This would not only fuel insurgencies but would also run the risk of dehumanising the enemy in our soldiers’ eyes and lead them to be more indiscriminate. Humanitarian law must be respected, the War on Terror may be a new kind of warfare but that does not mean that we can forget the law in fighting it, the rules must be respected to prevent total moral degeneration.
arguable that as terrorism is effectively a crime or series of crimes,
terrorists should be arrested and prosecuted through the courts. Such a policy
is illustrated in
Compromise is another factor to take into account. Once
terrorists have broken the law, it is debatable whether they should always be
treated as criminals or if amnesties should be instigated. The British
Government had planned a controversial Bill to allow paramilitary fugitives to
hope to maintain domestic or international support if civilians are continually
hurt by our actions. This will erode our moral standing and encourage support
for the insurgents. Moreover, if we were to kill civilians, even if it was
because they were associated with terrorists, the terrorists would be more
justified in attacking our civilians. Although it is wrong to kill
non-combatants, it is debatable if it is permissible to destroy their property
and infrastructure to sap the enemy’s will to fight. This could be the lesser
of two evils but would still alienate the population and images of their
suffering shown on the media would sap our political support. Paul
Barker, the director for aid agency Care International in
would have said after September the 11th that the
The ideas of Proportionality, Collateral Damage and the Doctrine of Double Effect all show and explain that it is impossible to fight groups who are un-uniformed and live amongst civilians without causing some harm to non-combatants but that does not mean that we should act indiscriminately towards entire groups. The line at which we would be judged morally to have moved from victims to aggressors depending on our actions would be extremely difficult to cross again in the other direction.
Sir Alistair Irwin summarised this situation:
“Once the moral high ground is lost it is almost impossible to regain.”
Therefore, I believe that state armies should remain within the law when countering insurgents to maintain the legitimacy of their government’s actions and to try and win the hearts, minds and political goodwill of the civilians and states that shelter terrorist groups to try and stop their supply of fresh recruits. After all, as Albert Camus aptly stated: “It is better to suffer certain injustices than to commit them.” 
 Lieutenant General Sir Alistair
Irwin KCB CBE, Address to Military Ethics Conference RUSI:
 Chaplain Scott Sterling, Lifestyles of the Just Warrior
 Lieutenant General Sir Alistair Irwin KCB CBE, Address to Military Ethics Conference RUSI: 20 September 2002