Foro sobre seguridad internacional y terrorismo
Los atentados del 11/9 ponen en el primer lugar de la agenda internacional el tema del terrorismo y la seguridad internacional. Este foro pretende la discusión, desde las diversas ópticas, sobre la mejor manera de abordar el tópico teniendo en cuenta los intereses, a veces tan dispares, de los Estados. Así pues, queda abierto el debate internacional...
posted by Luis Guillermo Colín at 8:32 PM
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US War Against Terrorism: Why should notions of restraint apply to terrorist combatants and why should torture remain banned?
Rodolfo Franco Franco
The United States has refused to grant standard notions of restraint to the foreign detainees in the context of the War on Terror. The US government has also showed a tendency to justify practices of torture abroad and those that amount to inhuman, degrading and cruel treatment at home on the grounds that the nature of terrorist organizations and the imminent threat they pose render such practices necessary to defend the American people and their way of life. However, little attention has been paid to the threat that an outright denial of rights and the justification of torture might pose to the American way of life. A society which chooses to disregard its most cherished principles might do so at its own peril. It has almost been taken for granted that such practices as torture will only be practiced on “foreign” people who threaten US security. However, given the ubiquity of the War Against Terrorism, some caution with regard to such arguments is warranted. As much as the US faces a terrorist threat, they also face the problem of maintaining the values that support their way of life. The threat is both external and internal. Thus, the best way in which the US can secure its values as a society and confront the terrorist challenge is by observing those principles towards others for the sake of the preservation of their way of life. Or else we might see one day people being crowded into a stadium in Los Angeles, not by terrorists but by US military personnel intending to save the nation. If necessity knows no rules, what should we expect from a notion of necessity with no clear limits which extends in time and space almost into infinity under the flag of the War on Terror?
In assessing whether notions of restraint in warfare should apply in combating terrorists who do not abide by such norms one must assess the nature of such norms and the arguments that have generated the questions about their applicability to the current state of affairs. The distinction between combatants and non-combatants—and their adequate treatment—are at the core of the doctrine of jus in bello. In essence the notions of jus in bello recognize two principles for the legitimate conduct of warfare. The first of these principles is proportionality; it “prescribes that the violence be in proportion to the aims of war; gratuitous violence should be avoided.” The second principle is that of discrimination; “discrimination is the injunction to avoid injuring non-combatants”
The events unleashed by the terrorist attacks of September 11th 2001 in the United States have raised a series of questions about the utility of the discrimination principle when facing the threat of terrorist organizations which do not follow the principles of legitimate engagement and whose members blur the line between combatants and non-combatants. Much attention has been paid to the fact that by making themselves indistinguishable from civilians, locating their positions nearby civilian infrastructure and having loose standards of membership terrorist cells impose a tremendous burden on military strategists. The problem becomes even more serious when these terrorist organizations explicitly target civilians.
The conditions under which indiscriminate attacks on civilians and non-combatants have been justified, and could be thought as justifiable under the notion of jus in bello, require a type of necessity and imminence of threat which does not clearly exist in the case of the so called War on Terrorism. Walzer provides an example of this sort of judgment; when the decision was made by the British to indiscriminately bomb German cities; the argument at least remained in a form that showed a dire necessity leaving no other means but to pursue those actions: “if we do not do x (bomb cities), they will do y (win the war, establish tyrannical rule, slaughter their opponents).”
The very notion of violating the imperative of not targeting combatants can only be justified when no other means are available to stop a greater harm. Even then, it is not that such actions are completely justified, since the conditions that will have to be met are purely contingent and a moral judgment could only be effectively produced after the fact. However, such arguments regard indiscriminate attacks only when it is reasonable to believe that if such actions are not undertaken the survival of the state, its people, and higher values would be at risk. In the case of confronting Nazi Germany, it was clear that, at least for a time, there were no other viable ways to defend Britain and stop the spread of Nazism and its ruthless practices.
Nevertheless, since the conditions under which the indiscriminate targeting of civilians are contingent and by definition pure cases will not capture the complexities of the situation, it will be extremely dangerous to grant an ex ante right for indiscriminate attack. Even if all the possible calculations could be made in advance; even if all the lives saved could be weighted against all those which were lost, and even if such a judgment attached the same value to each life regardless of creed, nationality or race, such calculations can never account for the totality of effects of such an action. At risk here are the values which hold a society together; once we stop categorically condemning murder and torture the whole way of life as a society might be at risk. “There is much else that we might plausibly want to preserve: the quality of our lives, for example, our civilization and morality, our collective abhorrence of murder even when it seems, as it always does, to serve some purpose.”
Terrorist organizations do in fact pose great challenges for the strategic exigencies of war. However, the need to combat terrorist organizations seems to fall far from the need to respond to them with traditional military means, both for the sake of efficiency and because there are other means available which can secure the principle of discrimination and the values of liberal democratic states regarding human dignity and the preservation of liberty and bodily integrity. “If some forms of terrorism are not war, but rather violent crime that demands a sociological analysis and police and judicial response, then counter terror war may not be justified, especially if other methods of dealing with terrorism might be effective.”
The question here is whether war could be waged against such terrorists while preserving the possibility of lawful combat. The answer is no; there is no way by which jus in bello principles can be observed when the task of fighting is conducted under conditions where the distinction between combatants and non-combatants is not self-evident; “counterterror wars tend to expand, along many dimensions, to the point that jus ad bellum and jus in bello limits on war are weakened or vitiated.” Thus, because counterterror is not war, jus in bello notions of restraint should not apply to terrorists since there are other effective means to deal with such individuals and organizations. “The nature of the U.S. response to September 11—a mix of law enforcement, intelligence gathering, financial asset tracking, and asset seizure—illustrates the different options that are available for counterterrorism. Thus, some just war theorists urge distinguishing counterterrorism from war.”
However, when we do not accept such a distinction between counterterrorism and war, notions of restraint in war serve to preserve a minimum humane treatment; humane treatment of prisoners and combatants and non-combatants lies far from pure considerations of the utility of reciprocal compliance with the laws of war. The notion that the defenceless should be preserved from harm is a strong moral imperative. If war is to be waged against terrorist organizations there is an imperative to secure the maximum degree of discrimination possible in order to secure the innocent and the defenceless from harm.
The very notion of unrestricted warfare which is implied by the inability to distinguish between combatants and non combatants is terrifying; it sets the conditions of possibility for (un)imaginable atrocities which no reasonable person will ever endorse or try to legitimize ex ante; neither is it clear whether indiscriminate war-like actions will be defensible in an ex post appraisal. Attempts to distinguish combatants (even when they are not called so) from non-combatants, even when difficult, have been made by the Bush administration in Afghanistan and Iraq. This is as best as can be done, the question here is not weather civilians are killed or not; the doctrine of just war recognizes the difficulty of avoiding civilian casualties under all possible circumstances. The minimum requisite for an attack to be legitimate is that “insofar as possible, violence not be directed at non-combatants.”
On the issue of detainees and prisoners of war, one could contend that terrorist combatants are not entitled the restrictions provided by the laws of war since they themselves have denied such entitlements by not observing. However, this does not warrant indiscriminate detention and denial of rights. If anything, the very idea that people can be denied rights suggests that further discrimination, an accurate one, is needed. Furthermore, for the sake of practical judgment it might be morally sound to avoid discrimination and grant practices of restraint to all persons disregarding their status. There is a practical problem with the outright disavowal of rights to terrorist combatants; if we cannot know whether one person is a combatant or not it would be sound to secure a practice by which we can secure the least harm possible for those innocent ones which we cannot be distinguished prima facie. The reasoning for such a practice might be as follows:
a) We ought to protect the innocent from harm
b) By not abiding by the laws of war combatants forfeit their right to have them observed upon them.
c) Combatants and non-combatants are indistinguishable; the innocent and defenceless cannot be told from the dreadful terrorists; we cannot expressly know who has forfeited their rights.
d) Thus, we ought to observe the rights of all detainees and persons towards who we direct war like acts in the light that the safety of the innocent will be better preserved if such provisions are taken than if not.
If we consider premise a) as a true moral statement, it follows that the best practices should be adopted in order to provide for the security of the innocent and defenceless. Since it is highly difficult to make that distinction in the case of terrorism, granting the restraints of combatants as a rule of thumb to all detainees might secure that the least possible harm is inflicted on the innocent and defenceless. Thus, notions of restraint should apply to all persons detained.
In regard to torture, the issue would not be complicated if we accepted the applicability of notions of restraint regarding the treatment of prisoners; the ban on torture is a codified principle in international law. The Convention Against Torture and Other Cruel and Inhuman or Degrading treatment or Punishment to which the US is a party states in Article 2(2): “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” However, the US has denied applying standard notions of international law restrictions to their detainees and it is thus necessary to address the issue. Moreover, it is known that the government of the US has engaged in practices that could amount to cruel and inhuman or degrading treatment and deported detainees to foreign countries where they might be tortured.
The apologists for torture see in it a means for preventing major catastrophes. It is also usually recognized that a lesser evil might be necessary in order to prevent a major one. However, this should not amount to the outright adoption of torture as a legitimate means to prevent major evils. Since, such judgements can only be made in an ex post situation when an evaluation of the whole of the circumstances can be made; any attempt to justify torture ex ante runs the risks of justifying a practice which is, by its nature, highly indiscriminate and where an assessment of the proportionality of the act can only be made after the fact.
Torture is also a hard case in this context, as, because of the secret nature of the terrorist organizations; advocates of torture strongly believe that information acquired from the prisoners might be crucial for the prevention of further terrorist attacks.
Al Queda continues to plan further attacks, such as destroying American civilian airliners and killing American troops, which have fortunately been prevented. It is clear that bin Laden and his organization have conducted several violent attacks o the United States and its nationals, and that they seek to continue to do so. Thus, the capture and interrogation of such individuals is clearly imperative to our national security and defence.
The problems imposed by such an approach have been exposed by Henry Shue: 1) “the torturer inflicts pain and damage upon another person who by virtue of now being within his or her power, is no longer a threat and is entirely at the torturer’s mercy,” 2) it is extremely difficult for a victim of torture to demonstrate that she has contributed as much as she can in providing the information her torturer wants from her; this could “in fact haunt the collaborator as well as the innocent, especially if his or her collaboration had struck the torturers as being of little real value,” 3) torture might become a routine where governmental agencies in charge of it might try anything to prove it necessary and legitimate, extending the practice in time and scope.
Arguments, for example that of Sanford Levinson, that torture must be legalized in order to restrict it and provide legal guarantees to its victims is at best very optimistic. First, it rests on the assumption that the judicial system might provide an effective check on the implementation of torture; however, it overlooks the problems of the judicial system as related to political forces as well as the fact that the processes might be initiated at a moment where some individuals, given their origin, race or religion might be prone to face a severe societal stigma which might hamper the ability to produce impartial judgments. Levinson argues that, by making judges complicit in the act of torture, they should know that they face potential risks if a court later on finds out that a warrant for torture was unreasonably granted. The issue here is whether judges faced with the political pressure to grant torture warrants will at the same time accept the possible risks of their actions or will be prone to insulate their offices from possible legal backlashes. Furthermore, there is the empirical question of whether states which actually provide a legal recourse to torture have been able to prevent the practice from turning into a systematic one; Levinson seems to assume that the US might be a special case where the restricted management of torture can be achieved.
Levinson's arguments seem to provide a practical assessment of the benefits of legalizing torture. Nevertheless, he overlooks the broader implications of such an argument. Not only does he seem to be negligent about the possibilities of the perversion of the institutions in charge of the administration of torture; he completely disregards the implications of such an arrangement in the life and self-image of a moral community, in this case the United States, whose fundamental values might be challenged by the notion of torture; after all, is it not right for habeas corpus to be at the heart and soul of governmental restraint and limited government? Legal discussions about the permissibility of torture pose the society of the US with the general question of whether they are to accept torture as part of the legitimate means available to governments to pursue their goals.
When arguments about the terrorist threat emphasize the necessity of torture, they do so at the expense of transforming a society and the values which render it coherent. Liberal societies which might concede that torture is acceptable will do so at their own peril. It is clear that under some circumstances, like the bombing of German cities, the argument of state survival might be a powerful one: “if we do not do X (bomb cities), they will do Y (win the war, establish tyrannical rule, and slaughter their opponents).” However, the argument here seems to be different, since the imminence and necessity to engage in practices of torture seems unwarranted; the definition of war on terror has expanded the limits of war almost to infinity and with it notions of threat and imminence. In such circumstances endorsing torture might amount to an attack on the existence of a society as defined by their most sacrosanct values. The argument might be presented as follows: if we do X (justify torture), then we will do X (sacrifice our way of living). “For some terrorists, extremity is not necessary, terror is a way of life, just as torture is a way of life for some torturers, and it is easy to explain why neither terrorism nor torture should be a way of life.” Legitimating torture might be the first step for making it a way of life; it might release those who practice it from the guilt such a practice should produce in them; even if they do not feel guilt, such a legitimation releases them from the need to justify their actions before a moral community. “An act of torture ought to remain illegal so that anyone who sincerely believes such an act to be the les available evil is placed in the position of needing to justify his or her act morally in order to defend himself or herself legally.”
Whether torture can be ever been justified is a question that cannot be answered in pure hypothetical terms. We could imagine hard cases in which we could justify torture as a lesser evil. However, the whole of the circumstances cannot be devised in such a priori reasoning. In legal reasoning we could say that: “If the situation approximates those in the imaginary examples in which torture seems possible to justify, a judge can sure be expected to suspend the sentence.” Morally, it is strictly necessary that such a choice between two evils remains such; torture is never right, even if we can imagine the conditions under which it might be necessary it is always a choice between evils and as such it should remain.
Conclusions
Notions of restrain toward terrorist combatants who do not abide by the same norms ought to be observed since the difficulty of discriminating the innocent is high. When faced with the problem of indiscriminate harm the US should follow the least harm principle. Since we cannot know who is innocent and who is not, it would be sound to apply notions of restriction indiscriminately in order to secure that the least harm possible is inflicted on the innocent.
Torture as a practice faces similar problems of discrimination. We can never know a priori whether some one holds information which is relevant to prevent a major catastrophe. Similarly, we can never know when someone has revealed all the information which he or she possesses regarding the plotting of terrorist attacks or the location of the leadership. There is always the risk of torturing someone who has no relevant information or failing to stop the practice when the victim has released as much information as is available to him or her. While torture could be said to be “justified” if it prevents a major catastrophe, such a judgment can only be made after the fact and even then it should not be a matter of whether the act was wrong or right, since torture is always wrong, but a matter of whether the circumstances left no other option. Furthermore, any attempt to legalize torture, legitimize it in some way, runs the risk of lifting the stigma around it and making it a generalized practice at the expense of a society which holds liberty and protection from bodily harm as their most cherished principles.
The ubiquity of the war against terrorism provides an argument for restraint regarding the practices of the US government when dealing with terrorists. When dealing with terrorist combatants (or the undistinguishable innocents), as with the case of torture, the US and its citizens must choose whether they want to secure their most valued principles. So far the debate about torture has focused on the threat that terrorist organizations and attacks pose to the American way of life; the question should be turned around and one must ask how the justification of torture and the denial of notions of restraint could threaten the American way of life.
References
Crawford, Neta, Just War Theory and the U.S. Counterterror War, Perspectives on Politics, Vol.1, No.1, March, 2003
Levinson, Sanford, The Debate on Torture: War Against Virtual States, Dissent, Summer, 2003.
Shue, Henry, The Debate on Torture: Responses, Dissent, Summer, 2003.
Shue, Henry, Torture, Philosophy and Public Affairs, Vol.7, No.2, Winter, 1978.
US Department of Justice, Office of Legal Council, Memo for Alberto Gonzales, August 1, 2002.
Walzer, Michael, Just and Unjust Wars, Basic Books, New York, 1992
Weisberg, Richard, The Debate on Torture: Responses, Dissent, Summer, 2003.
¿A qué hora se nos convirtió todo en calabaza?
Pues nada, resulta que salimos de nuestro letargo electoral y nos encontramos con conflictos por todas partes. Afortunadamente en América Latina ya aprendimos a resolver las cosas de forma civilizada y aunque los argentinos están muy molestos no podrán hacer mucho contra las papeleras uruguayas. No en todos lados es igual, en Sao Paulo desde la cácel se ordenan atentados en toda la ciudad.
Lo que si preocupa es que antes del mundial todos veíamos misiles dirigidos hacia Irán, después del cabezazo célebre del Zizou parece que Norcorea se empeña en el chantaje nuclear metiendo en conflicto a los cada vez más prooccidentales China y Rusia (eternos aliados de Pyongyang en las six-partie talks).
Pero la tensión mayor comenzó en una zona eternamente conflictiva, en el Oriente Medio y entre actores tan antaños como Hezbollah y el gobierno israelí (aunque sin Sharon esta vez). Tras el secuestro de militares israelíes, Tel Aviv lanzó toda su furia (más una demostración de poder) contra Beirut -aunque Hezbollah está en su mayoría ubicado en el sur del Líbano-, esto a su vez provocó la reacción contra Haifa y de pronto nos encontramos con una guerra abierta donde una vez más es la población civil la más dañada, no sé en qué termine esta violencia, creo que todavía hay esperanza si el conflicto termina en la próxima semana, de lo contrario esto tenderá a extenderse hacia los países árabes en una probable repetición de la Guerra Civil libanesa de las últimas tres décadas. COmo siempre, en estos casos prefiero equivocarme y que la diplomacia logre cuando menos llegar a un mal acuerdo.
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