Playing by the rules: must state actors constrain themselves

To operating within the law when countering terrorism?



Richard Kimmens

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.



Practical Issues:



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.”[1] 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.”[2] 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 Basra stated: “Every blow the Americans strike will bring more people to the way of God.”[3] Illustrating the practical reason why force should be checked: if it is not it only serves to create more insurgents.



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 Iraq. The US initially denied its use and handed a propaganda victory to our enemies because even though it is not classed as a chemical weapon, it is perceived as such. The whole situation further undermined the coalition’s ability to speak out against the insurgents’ tactics because it is perceived that we are using similar ones.



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.”[4] 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 US lost much credibility for condemning the treatment of hostages by insurgents when it decided to deny Prisoner of War rights to the Taliban and Al Qaeda prisoners it held. Communities that may be non-combatant are antagonized when they see the unfairness of the treatment their peers suffer, which in turn leads to deeper divisions between the state actors and the civilians they are there to protect.



Moral Reasons:



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".[5]



The US acts in accordance with the 1984 UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, which defines torture as follows: "Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…” However, the problem is where the line is to be drawn in the definition of “severe”. And, so long as this ambiguity remains, doubts will as well over state policy, at home and abroad. Even if torture is used in interrogations to extract information about further attacks and ultimately saves peoples’ lives it will still have a negative affect on public opinion and encourage others to rise up against the state actors on the side of the non-combatants, even more so if no useful information is gained.



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.



It is 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 Britain by the arrest of men that attempted to bomb London in July; Australia when a terrorist group was arrested in November; and America when a number of cases were brought against previously uncharged captives. For example, Jose Padilla, a US citizen held without charge since being arrested in May 2002, was charged in November 2005 with planning to undertake "violent jihad" after being suspected of planning to explode a “dirty” bomb. Following this he was moved into civilian as opposed to military custody. However, overseas, such as Iraq, where there is not necessarily a police force present, there is debate as to what policy to follow. Yet there is nothing to say that the military cannot capture perpetrators and bring them to justice. Using the law is the only protection we have from becoming terrorists ourselves; arbitrary justice is not the answer in the War on Terror.



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 return to Northern Ireland without facing prison. The Bill came under fire from many different groups and Tony Blair admitted that it would cause “pain and anguish" to the families of victims but Secretary of State for Northern Ireland, Peter Hain, said the government had to take difficult decisions to further the peace process. However, the Bill was finally dropped after continued opposition from all sides in January 2006.[6] If insurgents cannot actually be defeated, talking to them may be the only way to persuade them to lay down their arms as a group, but if it can be proven that individuals have broken the law, we cannot just allow them to go free.



We cannot 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 Afghanistan, told the BBC "It is kind of a Catch 22. As long as people do not see benefits of the aid, they may be more amenable to hosting or tolerating anti-government elements."



No one would have said after September the 11th that the US should not seek out those responsible and punish them, but it must be borne in mind that the intention of the terrorist is to disrupt society and produce an over-reaction. If the state over-reacts and kills non-combatants it will damage the state and strengthen its enemies. Moreover, by removing civil liberties to prevent further attacks the state actually does what the terrorist wants!






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.” [7]





  • Michael Walzer, Just and Unjust Wars
  • Lt. Gen Sir Alistair Irwin KCB CBE, Address to Military Ethics Conference RUSI (20/09/02)
  • P. Mileham (ed), War and Morality, “RUSI Whitehall Paper 61”
  • Amos Guiora, “Targeted Killing as Active Self-Defense”
  • Dinah PoKempner, “Bending the Rules” in The World Today (2003)
  • P. Mileham and L. Willett, Military Ethics for the Expeditionary Era, Ch. 4, M Ignatieff “Handcuffing the Military?”
  • Martin Cook, “Ethical Issues in Counterterrorism Warfare” (2001)
  • Ted Westhusing, “Taking Terrorism and the Rules of Engagement Seriously”
  • Major Richard C Anderson, “Redefining Just War Criteria”
  • Chaplain Scott Sterling, “Lifestyles of the Just Warrior”
  • Donald W. Shriver Jr, “An Ethic for Enemies: Forgiveness in Politics”
  • John Chomeau, “All is Fair in Love and War”
  • Robert G Kennedy, “Can Interrogatory Torture Be Morally Legitimate?”
  • Ted A van Baarda, “Freedom Fighters, terrorists and lawful combatants”
  • D Kellogg, “Guerilla Warfare”
  • Whitley R. P. Kaufman, “Terrorism versus Collateral Damage: What is the scope of Civilian Immunity in War?”
  • Brandon Cole, “The Combatant/Non-combatant distinction in light of the War on Terror”
  • Daniel S. Zupan, “Just War Theory, Law Enforcement and Terrorism”




[1] Lieutenant General Sir Alistair Irwin KCB CBE, Address to Military Ethics Conference RUSI:  20 September 2002

[2] Chaplain Scott Sterling, Lifestyles of the Just Warrior





[7] Lieutenant General Sir Alistair Irwin KCB CBE, Address to Military Ethics Conference RUSI:  20 September 2002