Law in a time of terror, continued

The existing laws of war are mostly products of 19th- and 20th-century conflicts and are largely contained within the four Geneva Conventions adopted in 1949 to address warfare against civilian populations and noncombatants, a particularly horrifying characteristic of World War II. There were also other treaties, such as the Hague Conventions of 1899 and 1907 and the Geneva Protocols of 1977, which include the regulation of the means and methods of warfare, and others that prohibit practices such as torture and the use of chemical weapons.

However, as Goldsmith observed: "It's certainly the case that the laws of war were not fully developed to answer all the questions about a war between a state on one hand and a nonstate actor/terrorist organization on the other. In some sense, they need to be updated to address this situation. How that should happen is a hard question to answer."

To Professor Alan M. Dershowitz, author of the book "Why Terrorism Works: Understanding the Threat, Responding to the Challenge" (Yale University Press, 2002), one of the shortcomings of the international laws of war in dealing with nonstate terrorists is that they don't address how to deal with combatants who are also civilians. "Terrorists are taking advantage of anachronistic international law," he said. "International law makes a sharp distinction between military and civilian--those in uniform and those not in uniform. But I've written about what I call a 'continuum of civilianality,' which recognizes that civilianality is a matter of degree, that there's an enormous difference between a child going to school and a religious leader of Hamas who gives instructions to turn on and off the terrorist button. The guy from Hamas is much closer to a combatant than the schoolchild, and we have to recognize that."

Dershowitz believes that the first step in mounting a sensible international response to terrorism is to change international law. But exactly how nations might go about doing that is not clear. "There has to be a forum for applying international law fairly," he said. "There's no international legislature that has any real authority, and you can't even get the U.N. to condemn terrorism. They hem and haw and talk about it as international liberation movements and that sort of thing."

Nevertheless, Dershowitz believes that the International Court of Justice, the principal judicial organ of the United Nations, might play a role in changing the U.N.'s approach. And the International Criminal Court, which came into force in 2002 as a permanent, independent body to try individuals for genocide, crimes against humanity and war crimes, "also holds some hope for the fair application of international law."

Even if there is no effective international decision-making venue, Goldsmith says, there are ways in which nations can develop rules on dealing with terrorism. One way to do that, he suggests, is through treaties. "States can get together and decide how terrorists should be treated," he said. However, he believes that treaties might be difficult to achieve. "It's always been hard to regulate terrorism because people have such different conceptions of what terrorism is--when it's legitimate and when it isn't." Another route, he said, is through customary law, when states facing a new threat "work out through diplomatic channels, through experiment and through back-and-forth arguments what the appropriate rules are."

Dershowitz agrees with the idea that nations can act in a somewhat autonomous fashion to form new rules that can become accepted as international law. As a case in point, he refers to Israel's air strike against an Iraqi nuclear reactor in 1981. That strike, timed to occur on a Sunday when the chances of collateral damage would be at their lowest, resulted in one casualty. The attack was immediately condemned by the U.N. Security Council. "However, Israel's actions today are widely recognized among international-law scholars as having been just and correct," he said. "So even though the law condemned them, the action became self-proving. The world essentially thanked Israel for depriving Saddam Hussein of nuclear weapons. When you read international-law accounts today, almost everybody says that what Israel did in 1981 was acceptable in international law notwithstanding the fact that it was condemned."

Still, unilateral action on the international stage can be risky. Professor Detlev Vagts '51 points to the U.S. creation of "military commissions" and the attendant uncertainties surrounding legal rights of detainees as having a strong bearing on how effectively extradition will work in bringing terrorists in other countries to U.S. justice. "Other countries may have inhibitions because they don't think that trials by military tribunals are a good idea," he said. "They may be inhibited from turning people over to us if we impose the death penalty." Furthermore, he said, the revelations of prisoner abuse at Abu Ghraib might also discourage extradition: "I think people are beginning to be afraid that [cases] might be mishandled."

But when it comes to the rights of prisoners, Dershowitz suggests that the traditional calculus needs to be changed when the equation involves terrorism. He writes in "Why Terrorism Works" that, while normally it is better to let 10 murderers go free than to convict one wrongly accused defendant, the same principle doesn't apply when it comes to terrorists with access to weapons of mass destruction. He suggests that in some instances torture might be warranted in combating terrorism. He calls it the "ticking-bomb scenario," in which there is good reason to believe that a detained terrorist knows about a ticking nuclear bomb. Dershowitz argues that torture may be the right action to take in that instance, and he further argues that a system in which judges would issue warrants, just as they do search warrants, would provide the proper accountability.

Not all scholars think that torture warrants are a good idea. "Problem number one is that the Convention Against Torture explicitly says, No excuses," Vagts said. "So we would be violating that. Maybe America could do it in a correct and humane way with conscientious judges, but there are a lot of countries that are signatory to the torture convention that don't have those institutions. The second problem is: I've never seen that case. For one thing, I don't think you'd have time to go to court."

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