Fair warning. Controversy ahead.
The laws of war, such as they are, are based primarily on a pragmatic understanding that deterring one side from doing pretty much whatever it pleases is not an easy task. Imposing one’s will on an entire nation requires a great deal of effort - sanctions, limited military action, outright invasion - and can be costly, if possible. The atrocities committed against their own populations by countries such as Saudi Arabia, China, Iran and Cuba are unstoppable by the civilized world, simply because the civilised world has neither the power nor the will to convince them to behave themselves.
This creates an odd problem that is simply not evident outside the military sphere. A country, one that believes it is fighting for its life, will not give up an option merely because the rest of the world thinks it is an evil option. All attempts to civilise war have floundered on the simple fact that, pressed against the wall, countries prefer not to leave any option untouched when the alternative is extinction. Nor are they inclined to allow others to take liberties while they are not allowed to do so themselves.
For example, a civilian insurgent can blend into the civilian population - indeed, he can often be unrecognisable before he strikes - and occupying armies find his existence somewhat unnerving. They therefore have a tendency, like the Germans in 1870-70, to retaliate against the civilian population as a whole, seeing them as sharing the blame for the existence of the insurgent. Such understandings do not judge the rightness or wrongness of the occupying force - or the insurgents, for that matter - but merely seek to prevent acts that spark atrocities.
The principle difference between the laws of war and civilian laws is that the former applies to soldiers, while the latter applies to individuals. A civilian caught engaged in criminal activity, even as part of a criminal organisation like the Mafia, can be charged, tried and sentenced as an individual. A legitimate combatant cannot be tried for simply being part of an army, no matter how hated or detested the army may be. The attack on Pearl Harbour that brought America into the Second World War was treacherous (although the Japanese messed up the timing that would have made it slightly less treacherous) but the Japanese pilots who launched the attack could not be legally executed; they fitted the definition of legitimate combatants, so they should have been taken prisoner rather than simply killed out of hand.
A further difference between the laws of war and civilian criminal law is that the laws are based on reprisal. Put crudely, if one side breaks the laws of war - say by gunning down surrendering men - the other side is legally permitted to retaliate against its own POWs. This serves the pragmatic requirement of urging both sets of soldiers to stick to the rules; if one side refuses to take prisoners, the other will do the same. Nor are those who try to take advantage of the rules to gain a brief tactical advantage allowed to prosper. If someone tries to pull an ‘I surrender, suckers’ bid, that person can be legitimately killed ... and the victims are therefore absolved of any requirement to take prisoners for a certain period of time. They are only obliged to make it clear that this is why they are refusing to take prisoners.
Some people will argue that this smacks of victim-blaming. They might have a point, but if one side chooses to stand outside the laws of war, they cannot complain if their enemies choose not to follow the rules either.
However, the laws of war were designed to cover wars between different nations. A nation, by definition, could not only make war, it could be collectively held accountable for its actions during that war. Furthermore, each nation was accountable for controlling its own territory; failing to do so, either deliberately or through simple inability, constitutes a legitimate cause for war. (Thus Operation Enduring Freedom was justified because the Taliban was either unwilling or unable to hand over Osama Bin Laden and his subordinates.) They were simply not intended to cope with transnational terrorist groups that turned failed states into base camps, or spread themselves across many different nations. Could such terrorists be treated as legitimate combatants under the laws of war?
The short answer is no. The Geneva Conventions established a set of qualifications for POWs and expected states to treat such POWs with human decency. Legitimate combatants had to be under responsible command, have a fixed sign representing themselves (i.e. a uniform), carry arms openly and conduct their operations in line with the laws and customs of war. These conventions deliberately excluded both soldiers operating out of uniform (spies, for example) and civilian insurgents. Both categories were deemed as illegal combatants and could be legally shot out of hand, after being given a very quick hearing in front of a military court. This could be very perfunctory, because the idea was to deter such acts in the only way that was believed to work.
But the treatment of POWs has become a contentious issue over recent years, because the war we are fighting now is a war unlike no other.
Had we gone to war against the Soviet Union, during the Cold War, the laws of war would have been honoured. Individual Russian soldiers would be held as POWs, then largely returned home once the war was over. There would not, as a general rule, be any thought of charging random Russians with war crimes. However, the terrorist factions we fight today have no inclination to follow the laws of war. Quite apart from striking at civilian targets - New York, London, Paris - with the deliberate intention of causing as much death and suffering as possible, they wear no uniforms and blend in with the civilian population. How, then, can they be treated as regular prisoners of war?
This was the problem that President Bush and his team couldn't begin to solve. Were the terrorists legitimate combatants? No; they wore no uniforms, they were not answerable to any realistic chain of command and they showed no respect for the laws of war. But should they be treated as criminals instead? Should they be given the due protections of American law, including lawyers, then put on the stand with all the ‘innocent until proven guilty’ preconceptions of American courtrooms?
Such a process would rapidly become absurd. First, the terrorists had planned to turn the nature of American justice against its owners. They were primed to scream abuse whenever they saw a reporter/lawyer/judge. (While there were cases of abuse at prisoner holding facilities, they were vastly exaggerated by the ‘neutral’ media.) Putting them in front of a judge would simply give them an opportunity to turn the courtroom into a circus. Second, gathering the high level of evidence required by law would be immensely difficult; a terrorist captured in the middle of a fire-fight would be hard to prosecute, in a civilian court. Third, most simply of all, most terrorists were captured in places that were, quite frankly, incriminating.
Put simply, the terrorists fell into the category of illegitimate combatants. They could be simply given a hearing, then shot out of hand.
However, and understandably, the prospect of shooting prisoners horrified many well-meaning people. To kill someone in the midst of a fight was acceptable; to murder someone in cold blood, and they thought of it as murder, was horrific. And yes, there was also the risk of snatching and executing someone who merely happened to be in the wrong place at the wrong time.
But should they therefore be kept prisoner for years, until the end of the war? And if we did, what should happen to them afterwards?
A POW from Soviet Russia could be released, once the war was over, and repatriated back home. But could one do the same with terrorists? Some have discovered that life as a terrorist isn't quite what the recruiters claimed it would be, but others have grown stronger in their perverted faith and their lust for vengeance. Nor would their home countries be inclined to take them home. Saudi Arabia wouldn't want the seventeen 9/11 hijackers back, even if they could be provided. Indeed, the Taliban and AQ included hundreds of fanatics who had gone to Afghanistan to fight, then discovered they were no longer welcome back home.
The terrorists have, deliberately, created a situation where there are no good choices. If we compromise our values, they can call us hypocrites; if we follow the better angels of our natures, we leave ourselves vulnerable to further attacks. And we are held to far higher standards than any of the terrorists. It's almost as if they’re allowed to be barbarians.
Of course, the terrorists live to spread terror. They don’t give a damn if they’re called out for slaughtering children, while the West’s leaders bend over backwards to avoid giving offense and scrabble to find a scapegoat when/if the shit hits the fan. The idea that many of our problems come from watching as one side ignores the laws of war, while the other slavishly adheres to them even when they have every legal right not to do so, is beyond our political lords and masters. But then, it seems to beyond the chattering classes too.
In the end, we will have to make some hard choices. Is it wrong of me to want all of the terrorists dead? I cannot help, but feel that people who choose to stand outside the laws of civilised society have no call on its protections. But, at the same time, defining one particular category of people as permanently excluded from such protections weakens the protections - permanently.
For the moment, all we can really do is keep the captured terrorists locked up indefinitely - and hope we can win the war without becoming the barbarians we hate and fear. I have no other solution.
Christopher G. Nuttall